Reviewing criminal records to identify convictions documented in county, state, national, and federal databases is an acceptable and recommended practice as part of the background screening and hiring process. In fact, 92% of organizations utilize pre-employment background screening to vet candidates and ensure workplace health and safety for current employees and clients.
Our related articles can help you gain greater insights on what is included in a standard criminal background check, and how to interpret legal terms and abbreviations in a criminal background check to expedite your report evaluation process. Although most employers understand some basic fair hiring practices, many have lingering questions about FCRA regulations, EEOC guidelines, and – most commonly – whether a candidate’s arrest records can be considered when making an employment decision.
In this article, we’ll explore the local, state, and federal laws that impact employer use of candidate criminal records, and review FCRA and EEOC regulations and guidelines to help your organization remain legally compliant while conducting responsible hiring.
Review of FCRA and EEOC Requirements and Recommendations
As a starting point, employers must acquire written consent from any candidate or employee before conducting a background check. This requirement is mandated by the Federal Fair Credit Reporting Act. In the event that the results of a report (namely, a criminal conviction) could lead to a denial of employment, employers must follow FCRA guidelines regarding pre-adverse action notice and adverse action steps. Specifically, employers must provide a “pre-adverse action” notice in the form of a letter to the candidate that includes attached copies of the candidate’s consumer report and a written summary of their rights under the FCRA. This letter provides a candidate notice of a potential adverse action in advance, and grants them a reasonable time period and opportunity to dispute any information that has surfaced in the report, including possible errors.
In general, employers should diligently document each step of their evaluation and employment decision processes, keeping detailed records, especially when a denial of employment is based on the results of a criminal background search or a discrepancy in educational or employment credentials. As we’ll explore in the next section, it’s also essential to remain mindful of local, state, and federal fair hiring laws that may limit an employer’s use of criminal background information past a certain time period or if the record has been expunged, dismissed, or sealed.
Sometimes jurisdictional factors also have bearing on an employment decision, especially for out-of-state candidates or employees who are protected by fair hiring laws not active within the jurisdiction where the organization operates. Lastly, in general, state laws tend to intensify federal regulations/standards, and local laws tend to be more stringent than state laws, as well. That’s why it’s essential to work with a qualified background screening provider that can evaluate all of the regulations that apply to your organization and workforce to ensure employment law compliance in each hiring decision.
For more information on what records NCS reports, click here.
Arrest Record vs. Conviction: How to Navigate Local & State Laws in Employment Decisions
One of the major concerns and compliance considerations employers face when conducting criminal background screenings is whether they can legally consider arrest records in their employment/hiring decisions. This issue can become incredibly complicated due to a number of factors: Equal Employment Opportunity Commission (EEOC) guidelines; restrictions on considering dismissed, expunged, or sealed arrest records; and the large degree of variance between local, county and state regulations on evaluating arrests vs. convictions.
In this section, we’ll offer best practices on how to navigate these compliance concerns and outline the states and localities where more stringent (or minimal) arrest record restrictions are in place.
The EEOC offers general guidance on how to consider arrest records in an employment decision, emphasizing that arrest records should not be regularly or primarily used to make an employment decision or exclude a candidate from employment. The exception is if a candidate’s arrest-related conduct could affect one or more job responsibilities, suggests unsuitability for a given position, or is relatively recent.
In essence, the EEOC is discouraging the use of arrest records as a basis for a hiring decision since it is categorically distinct from a conviction and could manifest as a form of bias and hiring discrimination.
This issue remains contentious and is reflected in the range of local and state laws that either enforce a “ban the box” policy forbidding the consideration of arrest records, or - in certain states - offer limited or no restrictions. Employers should bear in mind that, strictly speaking, the EEOC’s guidelines are recommendations and there is currently no federal law that prohibits organizations from reviewing and considering arrest records in their hiring decisions. Even so, it's advisable for most organizations to abide by EEOC guidelines in conjunction with the local, county, or state hiring laws that apply based on jurisdiction.
Total Ban on Considering Arrest Records
Currently, some states entirely forbid the use of arrest records in the hiring process. This means they can neither ask candidates about arrests or use an arrest record that did not result in a conviction as a basis for denying employment. These states include Arizona, California, Hawaii, Maine, Massachusetts, Michigan, Montana, New York, Pennsylvania, and Wisconsin.
Ban on Considering Dismissed, Expunged, or Sealed Arrest Records
Other states do not completely prohibit the consideration of arrest records, but do prohibit organizations from making hiring decisions using criminal records that have been dismissed, expunged, or sealed. This includes states like Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, Ohio, Oklahoma, Utah, and Virginia.
Selective or Situational Ban on Arrest Inquiries
Some states permit arrest inquiries under certain circumstances or conditions. This includes the following states: Georgia, Maryland, New Jersey, Washington, Texas.
For instance, in Maryland, employers can only inquire about specific arrest records that “bear a direct relationship to the job.” Conversely, in Texas, employers can only consider arrest and conviction records from the past seven years for jobs that pay under $75,000, but may consider all arrest and conviction records for jobs paying over $75,000 annually.
States Without Bans on Use of Arrest Records
Lastly, some states have not created any restrictions on the consideration of arrest records during the hiring process. This includes states and districts including Alabama, Alaska, Arkansas, Idaho, Iowa, Kentucky, Louisiana, Missouri, New Mexico, North Carolina, North Dakota, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, West Virginia, Wyoming, and Washington, D.C.
For further guidance on state-specific compliance issues that apply to the jurisdiction(s) where your organization operates, visit our state resources portal.
Considering Local Laws
While an awareness of federal and state hiring laws is critical, in certain cases, a local jurisdiction could have a fair hiring or “ban the box” law that the rest of the state does not enforce. This applies in cities like Portland, Oregon; Hartford, Connecticut; Austin, Texas, and other municipalities. It’s important to remain aware of these local laws and ordinances in the event that they conflict with state or federal laws and could impact future liability in hiring decisions.
Best Practices for Compliance and Fair Hiring
As a general rule, it is best not to consider arrest records in the hiring process unless the conduct underlying the arrest has a direct bearing on the job responsibilities, working environment, or other key aspects of the position. This approach not only aligns with EEOC guidance, but protects employers from accusations of discriminatory hiring. As the EEOC emphasizes, making thoughtful and individualized assessments of each candidate’s suitability for a position is essential.
Even if an employer operates in a jurisdiction where arrest records are permissible for review and employment consideration, it’s advisable to minimize or eliminate its role in an employment decision, especially in circumstances involving an expunged, dismissed, or sealed record, or a past arrest from 7+ years earlier that has no bearing on the job in question. Of course, if and when an employer opts to deny employment based on an arrest or conviction that is relevant to the position or the safety of employees, this is justified, but requires compliance with FCRA regulations and thoughtful recordkeeping to safeguard against potential legal action in the future.
Informed, Responsible, and Expedited Hiring with National Crime Search
Conducting a compliant background screening process that yields the information you need to make timely, informed, and responsible hiring decisions can be a demanding task without the right tools and professional support.
Ensure your hiring process aligns with legal compliance and ethical practices. Trust in National Crime Search's comprehensive pre-employment screening services, including criminal background searches, employment verification, education verification, and much more. Contact us today to discover how we can support your organization in creating a fair and responsible recruitment process.
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