Using a criminal background check for employment purposes has become increasingly common. According to HR.com research published in 2021, 95% of employers with locations in the USA request a background check on every job applicant. Of the employers who use a background report, 94% vet new hires for criminal records, while 75% also consider credit history, drug testing, and other information when making a hiring decision.
Employers often expect running a background check to reveal all legal issues in a subject’s past, including every criminal charge, all criminal convictions, and court records. However, a background check company often doesn’t include arrest information in a background report.
Why do arrest records not show on some background checks, and how can employers review arrest records if the job demands it? Do background checks show arrests? What happens when an applicant is arrested but not convicted?
This white paper answers these questions and provides state-by-state information on properly using pre-employment background checks.
Arrest records, similar to other criminal record data, are generally part of the public record. The most common exception involves arrest records about an ongoing legal investigation. Some state laws require that criminal history records be destroyed or wiped from public records if there are no criminal convictions or the charges against the subject are dropped.
Details of arrests typically show up when running a background check on prospective job candidates. However, most background check agencies don’t include arrest details in their background check reports since there is some controversy about its inclusion in an employment decision.
One reason for this dispute is that arrest records are not meaningful without a conviction. An arrest is not proof that someone is guilty of a crime. If court records appear in a background check, they can lead to the job candidate’s disqualification due to crimes they were never charged for or cases where they were found not guilty.
The Equal Employment Opportunity Commission has issued several guidance points concerning what a background check may include.
The guidelines provided by the EEOC on arrest records and their use in employee vetting are just that: guidance. While employers would be wise to follow this advice to avoid discrimination, the EEOC does not make the laws. No federal law prohibits businesses from considering arrest records for a hiring decision. Still, there are many parts of the country where employers can use them if they wish to do so and are willing to do the required research.
Just because there is no federal law concerning using arrest records for an employment decision does not mean there are no laws. Many states have passed legislation that limits, regulates, or outright bans the use of arrest history in a background report. As such, your company’s right to consider arrest records when hiring a new employee will depend on your location.
To help employers understand what they must do, we offer a comprehensive overview of the 50 states and Washington, D.C., and split them into the following four categories:
Note that these categories are purposefully broad. Every state’s laws are slightly different, which means even two states in the same category may have different regulations concerning how they can apply arrest records for an employment decision.
Several states ban the use of arrest records for background screening. They either order employers not to inquire about arrests or ban companies from considering those “that did not result in a conviction.”
States that fall into this category include:
There are exceptions in some of these states. California, New York, and Wisconsin all allow employers to consider arrest records where charges are pending against the subject.
In Wisconsin, the employer can only disqualify the candidate on pending charges if relevant to the job. Employers in these states should avoid using arrest records in any criminal background check.
Many states have laws that prohibit employers from inquiring about or making decisions based on expunged, sealed, or dismissed records. These laws do not specifically cover arrest records. Instead, they pertain to any type of criminal history—including arrests, charges, or convictions—that have been expunged or sealed.
Technically, these records should not be accessible to the public, which means they shouldn’t appear on background checks. However, databases aren’t always updated as quickly or reliably as they should. An expunged or sealed record sometimes shows upon a criminal background check or even in a standard web search. Employers in the following states cannot use these records (including records of arrests related to expunged crimes) to make a hiring decision:
In these states, employers must not request applicants disclose expunged, sealed, or dismissed records. In addition, employers should be careful about following the Fair Credit Reporting Act (FCRA) to the letter when running checks for employment.
Employers wishing to disqualify candidates for reasons related to criminal history or arrest records must notify the candidates in writing and allow them to respond. That way, a candidate can inform the employer if the disqualifying charge, arrest, or conviction was expunged from their record.
*Note: Nebraska technically qualifies as a state with an arrest record rule that pertains to expungement, but not in the same way as the states listed above. In Nebraska, certain arrests should be automatically removed from a person’s record (and therefore not available to background check companies or employers) under qualifying circumstances. These circumstances are:
These expungements should happen automatically when the required criteria are met. Once these arrests have been removed from a subject’s record, employers can no longer consider them for employment purposes.
**Note: New Hampshire’s rule is distinct from the others on this list. In New Hampshire, employers can inquire about arrest histories but are prohibited from asking about expunged records. This part of the law is similar to what is enforced in other states. The part that is unique is employers must use specific wording when asking candidates about criminal or arrest history. They must ask “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” This wording makes it clear candidates are not expected to disclose records that have been expunged.
Several states have laws that allow employers to inquire about arrest records or consider them a factor for a criminal background check, but only in specified situations. This category is the smallest of the four discussed in this whitepaper.
Below, we explain the state laws of five states regarding employers and arrest records.
Georgia: Employers are limited to inquiring about arrest records of first offenders during the hiring process. Employers cannot consider arrest records that did not lead to a guilty verdict or conviction if the subject is a first offender. Arrests of a person previously arrested or convicted of a crime are open for employer consideration. Georgia residents are eligible to have their first arrests discharged under the state’s “First Offender’s Law.”
Maryland: Employers in Maryland are only allowed to ask candidates about arrests or convictions that “bear a direct relationship to the job.” In other words, employers cannot ask general questions of job candidates like, “Have you ever been arrested?” or “Have you ever been convicted of a crime?” They must specify which crimes they want to know about. If an arrest or conviction is relevant to the available position, employers can ask about and consider it when making a hiring decision. The exception is if those arrests or convictions were expunged or sealed.
New Jersey: Employers can request, retrieve, and consider information about arrests with pending charges. However, they cannot inquire about expunged records or arrests that did not lead to a criminal conviction. Employers may not assume a candidate with a pending arrest is guilty.
Washington: Here, employers can inquire about arrests but must include questions concerning the status of the charges. The employer must ask whether the charges related to the arrest
1. Are still pending,
2. Have been dismissed, and
3. Led to a conviction of a crime relevant to the vacancy.
Employers are expected to ask whether the arrest occurred within the last ten years—older arrests must not be considered.
Texas: In Texas, the restrictions for employers and arrest records relate to the salary of the vacant position. If the annual salary is $75,000 or less, the employer can only consider arrests or convictions from the past seven years. Employers can consider arrests or convictions older than seven years if the job pays more than $75,000 per year.
States with ban-the-box policies may also have limitations on using arrest records. We won’t expand on these policies in this document, as they do not expressly prohibit using conviction or arrest history information. Instead, these policies ban employers from asking about criminal history (including arrests) on job application forms.
They may also require employers to delay the criminal background check until later in the hiring process. Ban the box policies do not prohibit employers from learning about or considering arrest histories when running a background check.
Many states have no laws banning or limiting the use of arrest information for employers. These states include:
At the time of writing, these states had no laws beyond ban-the-box legislation that restricted employers from asking questions about arrests or considering arrest information when doing checks for employment.
We stand by the information provided above, but there are a few essential disclosures to provide. You should consider these before making decisions or planning hiring policies based on the details discussed in this document.
Just because a state does not have a law barring the use of arrest records for employment decisions doesn’t mean it will remain that way. Background check legislation changes continuously, as proven by the rapid spread of ban-the-box legislation. Before deciding on your company’s background checks and arrest records, you should double-check the laws in your state to ensure nothing changed.
As mentioned, equal employment opportunity groups such as the EEOC and human rights organizations have issued guidance about arrest records. For instance, the Kansas Human Rights Commission has issued guidance instructing employers that it is “inadvisable” to ask job candidates about arrests that are not “substantially related” to the available job. Kansas is one of the states that prohibit inquiries about expunged arrests. Failure to follow these guidelines can result in potential legal action alleging discriminatory hiring policies.
Even if a state doesn’t have a law about background screening and arrest records, a local jurisdiction might. One example is Hartford, Connecticut, where contractors working for the city cannot disqualify candidates based on arrests or criminal accusations.
Another is Portland, Oregon, where employers are not allowed to consider arrests that did not lead to convictions unless the arrests have pending charges. Always reference laws and ordinances in your area before deciding about a job applicant.
Ultimately, it is vital to remember that arrest records do not mean anything without corresponding convictions. Regardless of the laws in your state or jurisdiction, it is always safer not to consider arrest records when doing pre-employment background checks.
At backgroundchecks.com, we do not include arrest records on our background check reports. Instead, we provide arrange of highly reliable services designed to help you screen your job candidates responsibly and effectively.
Our USOneSEARCH and USOneVERIFY background checks include more than 670 million records from all 50 states (plus Washington, D.C. , Guam, and Puerto Rico). We also offer local, state, and federal criminal searches and other comprehensive background check services, such as previous employer references and confirmation of professional licenses.
Download your copy of this white paper about arrest records now.