Can I Consider Arrest Records When Making a Hiring Decision?

Can I Consider Arrest Records When Making a Hiring Decision?

hiring-decisionAn interview should be more than a criminal record.

When running a thorough background check, you might find an applicant has an arrest record. Reasonably, this is a point of concern. But is it such a strong one that you shouldn’t hire the applicant at all? And what are your legal obligations?

Arrests And Hiring

There are several factors at work when considering arrest records. The first is that under federal law, you can’t refuse to hire an applicant based on their arrest record alone. An arrest is not a criminal conviction; in 2012, for example, 200,000 people were arrested for federal crimes, but only roughly a quarter were actually convicted and even fewer served any sort of jail sentence. If you stumble across an arrest from years ago and your applicant has a clean record since, it’s reasonable policy to simply set it aside.

If, however, the arrest is concerning to you, you need to know how to stay within the law. For example, the Equal Employment Opportunity Commission forbids considering arrest records if they significantly disadvantage certain populations from applying for a job, and if these arrest records aren’t relevant to the hiring process. For example, if somebody is arrested for a driving offense and you’re considering them for a delivery or logistics position, that arrest would be a factor; if they’re working in an office, you couldn’t consider it under the law. You also have to treat everyone with an arrest record the same way; if two people with the same arrest record apply for the same job, the government would like to see the same outcome.

In addition, there are state laws to consider. How states mandate arrest records can be used in hiring varies widely. California, for example, forbids seeking records about an arrest if it didn’t lead to a conviction, and you can only ask about arrests if they’re awaiting trial. You can also only ask about a conviction if the questions are related to the job.

Hiring The Right Way


hiring-decision-2Arrest records shouldn’t be key to a hiring process.

So, how to hire the right employees while staying inside the law? First of all, know the law and ensure your hiring managers and recruiters are also fully aware of the law. You’re just as likely to be exposed to liability from improper hiring procedures as you are from negligent hiring, so fully brief any employee who makes a hiring decision on their obligations. If possible, consider separating background check information from certain aspects of the hiring process, treating arrests as “need to know” information.

Secondly, create a consistent standard to ensure everyone with a relevant arrest record is treated the same way. look closely at the arrest before pursuing more information, keeping in mind the federal standard that the arrest must be relevant to the job you’re hiring for. If it would have no impact on their ability to execute the role, leave it out of consideration.

Finally, have a distinct, clear process for when you take an adverse action. If you know how to handle this situation when it comes up, you can protect yourself while hiring the right applicants. If you’re ready to start hiring the smart way, request a free background check trial and find out what we can do for you.

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