Although the legal implications of arrests and convictions are often conflated, it’s essential for employers to understand the distinction to make ethical and compliant hiring decisions during employment screening. In this article, we’ll explore the key difference between an arrest vs. conviction and offer guidance on how to keep your organization compliant with FCRA guidelines, “ban the box” legislation, and other criminal background check requirements.
Arrest vs. Conviction
An arrest record indicates that an individual was taken into custody by law enforcement and held temporarily. It does not prove guilt or demonstrate that any wrongdoing has occurred. Following arrest, any of the following could occur:
- The individual is never charged with a crime.
- The individual is charged with a crime but the charges are dismissed or dropped.
- The individual is charged, goes to trial, but is found “not guilty”/is acquitted.
In each of the scenarios listed above, the individual has only been arrested. They have not been convicted or found guilty of a crime (misdemeanor or felony).
In contrast, a conviction record is a legal declaration that an individual has been found guilty of the crime they were charged with. This “conviction” designation applies to many categories of crime, including misdemeanors and felonies. Whether the individual was found guilty of a crime during a trial, or pled guilty, the same conviction designation applies. In some cases, even an individual who completed community service, received an (un)conditional discharge, paid a fine, or was given probation retains a conviction record. This is dependent on state-by-state policies on records of low-level offenses and other violations, which vary across jurisdictions.
Considerations for Employers
The distinctions between arrest and conviction have significant legal implications for hiring (and maintaining hiring compliance across your organization). Namely, although the Fair Credit Reporting Act (FCRA) technically permits employers to consider conviction and arrest records during the hiring process, a number of state and local laws uniformly ban the use of arrest records, or only allow employers to consider arrests with pending judgements. According to FCRA guidelines, arrest records – if used at all – may only be considered if they occurred within the past seven years from the date of a background check.
In terms of additional legal concerns related to the use of arrest records, the Equal Employment Opportunity Commision (EEOC) has provided guidelines that employers should not use arrest records as the basis for an outright disqualification from employment. The EEOC also advises that any arrest record seriously considered in a hiring decision should be investigated to determine the circumstances, or whether the individual was found guilty. In general, failure to abide by these EEOC guidelines could put your organization at risk of a discriminatory hiring claim or lawsuit. Similarly, lack of awareness of local or state “ban the box” laws that forbid the consideration of arrest records could also lead to major penalties for noncompliance and lawsuits from candidates or employees. Our related article on ban the box legislation offers further information and guidance on how to remain compliant with local and state arrest record laws and how to adapt responsible internal policy on the use of arrest records.
Unlike guidelines regarding arrest records, the FCRA permits employers to consider a conviction record regardless of the amount of time that has elapsed since the conviction. Of course, the EEOC and other organizations encourage employers to consider many surrounding factors before using a conviction record as the sole basis of disqualification from a position. For instance, if a candidate’s conviction occurred many years ago, was a misdemeanor (or a felony with no bearing on job responsibilities), and the person has not been arrested or convicted since that time, the EEOC encourages further dialogue with the candidate and/or individualized consideration before making a hiring decision.
Our related guide offers extensive advice on how to adopt fair hiring best practices to help your organization make legal and ethical decisions when considering arrest or conviction records.
Ensure Fair Hiring and Legal Compliance with The Orsus Group
37 states and over 150 counties and cities have adopted “ban the box” legislation that limits or bans the use of arrest records in the hiring process, or places restrictions on the use of conviction records. It’s crucial for employers across industries to understand which regulations apply to their jurisdiction(s), and how to develop internal hiring policies that are ethical and legally compliant.
The Orsus Group offers the technology and expert support to help your organization navigate all aspects of criminal background screening to vet top talent, develop legally compliant internal policies, and make fully informed hiring decisions. Improve your hiring process and enjoy compliance peace of mind with The Orsus Group today.