HR Question of the Month: Arrest Record

Submitted by Federated Insurance

Question
As a last step in our hiring process, we require a candidate to pass a background check after they have been interviewed. Recently, a background check came back with an arrest listed. Are we allowed to turn down the candidate due to the arrest?

Answer
Employers can consider criminal records when they make the final decision about hiring. An employer considering criminal records in hiring decisions should assess whether the record is relevant to the job. An employer can assess the relevance of a person’s criminal history and how it relates to the risks and responsibilities of the job. The employer’s hiring decision should accurately predict who will be a responsible, reliable and safe employee.

However, arrest records are treated differently. An employer cannot refuse to hire people simply because they have been arrested. The fact that a person was arrested is not proof they committed a crime. That said, there are situations where an employer can explore the person’s conduct leading to the arrest and ask them to explain the circumstances. The employer can then decide whether the conduct is a reason not to hire the person or to make another employment decision.

Employers should also be aware of other laws they may need to comply with. For example, when an employer runs background checks through a company in the business of compiling background information, the employer must comply with the Fair Credit Reporting Act. In addition, several states have enacted laws, commonly known as “Ban the Box” laws, that limit employers’ ability to seek and use information about job applicants’ criminal histories. These provisions generally prohibit employers from automatically disqualifying applicants based on their criminal background. Given the complexities, employers should work with local counsel to ensure their hiring processes comply with all applicable laws.

NOTE from Electrical Association...

Do you run background checks on new hires? Should you? Especially if an electrician is working in a client’s home, nursing home, school, it’s a good idea. If the report comes back clean, great!  But what if it doesn’t?  Just because someone has been involved with the criminal justice system in the past, doesn’t mean they can’t be a great employee. The Electrical Association is partnering with Fair Chance Employment to bring you a scoring product that helps you make sense of your background check and make informed decisions. Members of the Association will receive three months of FREE service. Read more.