Whether arrest records will show up on a background check report depends on several different factors. The most significant variable by far is location. Throughout the United States, laws are divided regarding whether employers should be permitted to consider arrest history as part of the hiring process.
The point of contention is arrests by themselves are not proof of guilt. Someone may have been arrested but never charged or arrested and charged but ultimately acquitted of the crime. Arrests without corresponding convictions can only arouse suspicion that a candidate may have been involved in criminal activity.
At very least, employers are urged to investigate further and determine what happened after an arrest. If there was a conviction, then that piece of information may be relevant to the hiring process. The same holds true if there are pending charges related to the arrest. If the arrest never led to a conviction, then an employer cannot fairly disqualify a candidate based on the arrest alone.
In some states, the law reflects this point about fairness. States like New York, California, Michigan, Arizona, and Pennsylvania prohibit employers from asking about arrest histories or considering arrests that didn’t lead to convictions. Other states only ban the use of arrests in certain situations, while many still have no laws on the subject. Employers need to be aware of their obligations under the law when it comes to arrest records.
The other big factor is the company entrusted with preparing the background check report. At backgroundchecks.com, our criminal history background check reports do not include any information about arrests. We exclude arrest information partially as a means of protecting our clients.
We are aware of the expectation that employers should investigate arrest history information thoroughly before making hiring decisions where that information is a factor. This expectation, laid forth by the Equal Employment Opportunity Commission (EEOC), is a means of avoiding discrimination in employment. We also know many businesses do not have the resources necessary to conduct such investigations independently. As such, we do not include arrest information on our background check reports.
Our reports will always include conviction information. If a candidate was arrested and that arrest led to a conviction, our background checks will reflect that part of the person’s criminal history. We will also highlight charges that are pending or were dropped—however, we will not include details about arrests that went no further, as they are not a consistent indicator of criminal activity.
Arrest records are a part of the public record, so there is no law that can prohibit employers from looking at them. The question of whether an employer can or should use arrest records in their hiring decisions is more complex. To learn more about the rules surrounding arrest records, background checks, and hiring decisions throughout the United States, read our white paper about the use of arrest records by state.