Conviction Records v. Arrest Records: Which can I use in hiring?

Chuck Smith —  September 17, 2014 — 3 Comments

You’ve narrowed your candidate pool down to a chosen few and are ready to check the backgrounds of your top candidates. Criminal background checks are in order. After all, you don’t want to hire a criminal, right? Seems simple, but like most issues in recruiting and hiring, the process can be complex with hidden pitfalls.

conviction records

Lest you think that this problem doesn’t come up very often, take a look at the front page of the Wall Street Journal from August 19, 2014. The article reports that the FBI criminal database contains arrest records for 77.7 million Americans, an astounding 33% of adults.

Perhaps the most common pitfall for employers is not understanding the difference between an arrest and a conviction in making hiring decisions. Here is the difference according the Federal Equal Employment Opportunity Commission (EEOC):

Difference Between Arrest Records and Conviction Records

The fact that an individual was arrested is not proof that he engaged in criminal conduct. Therefore, an individual’s arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Bottom line: You shouldn’t deny employment to a candidate based on an arrest record.

conviction records hiring, employee criminal background check

Even more so, you shouldn’t go Googling around looking at “mug shot sites” to find out if your potential new employee has ever been arrested. Conviction records are another matter. You generally can (whether or not you should is another matter) use criminal conviction records to deny employment. The most common exception to this is if you are engaging in pattern of discrimination against a protected category of people and using criminal conviction records for crimes unrelated to job duties to deny employment.

So what’s an employer to do? Here are some basic rules:

  1. Do NOT use arrest records to make hiring decisions.
  2. Do ask if candidates have been “convicted of a felony.”
  3. Do inform candidates that you will be doing pre-employment backgrounds and obtain the candidates’ written consent.

One thing that you can do to work around this process is ask candidates if there is anything you will find on their background check that they’d like to tell you before you run it. It is much easier to deny employment to someone who has lied in the current recruiting process than for any kind of past action.

The takeaway here is that you cannot use arrest records when hiring. You can use conviction records, but you cannot use them to discriminate. Essentially, if the conviction directly affects the potential hire’s ability to do the job, you can use it. If it is unrelated, you may be at risk.

 

Chuck Smith

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Chuck is a sought-after speaker on issues of talent acquisition, recruiting and hiring best practices with more than 20 years of experience under his belt. When not running his business, you'll find him in Hyde Park playing ultimate frisbee with his friends & family. Connect with him on Google+.

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3 responses to Conviction Records v. Arrest Records: Which can I use in hiring?

  1. Great article. Thanks for the clarifications. There is so much subtlety in employment law. You articles always offer very helpful and valuable reminders!

  2. Thanks for posting Chuck,

    Illinois has joined the parade of states to ‘ban the box’. Effective 01/01/2015, employers will need to remove any questions about a conviction record from their employment application. Also, an employer may not inquire as to a conviction record until an applicant has been selected for an interview or after a conditional job offer has been made. Then, other requirements surrounding the use of background checks will apply. For more information, please visit http://ilga.gov/legislation/98/HB/PDF/09800HB5701lv.pdf

    • Critically important information. How will this affect companies’ recruiting processes? It seems that it may reduce discriminatory hiring practices, but will it put companies at greater risk? One consequence seems likely: unless employers adjust their recruiting processes, they are likely to find themselves having to start over again at the end (when they discover information that can be used appropriately). It seems like another good reason to keep up the recruiting work until you have a new hire in the seat. This is something we stress, but it is challenging to do. Don’t assume you are going to be able to hire your favorite candidate. See our post on “The Hot Standby,” to learn more.

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