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Can you consider non-convictions when making a hiring decision?

QUESTION: I noticed your background screening reports contain both arrest records that did not result in a conviction (dismissed, subject found not guilty, etc.) as well as charges that did result in a conviction. Can we consider the non-convictions when making a hiring decision?

ANSWER: Our policy is to report all legally reportable records (non-convictions are legally reportable for 7 years in most states) unless our client requests that we redact non-convictions. But that doesn’t necessarily mean you should use the non-conviction record in your hiring decision process. To answer your question, we turn to the Equal Employment Opportunity Commission (EEOC). A conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. The fact of an arrest without a conviction does not establish that criminal conduct has occurred. Arrest records are not probative of criminal conduct, as stated in the Commission’s 1990 policy statement on Arrest Records. However, an employer may act based on evidence of conduct that disqualifies an individual for a particular position. Check with your employment law attorney for guidance in this area. If your attorney advises that you not consider non-convictions, it’s best if you never see it so give us a call and ask us to remove these records before delivering the report to you.

Since you can’t assume the person engaged in the alleged behavior based solely on an arrest, you need to take additional steps to find evidence that your applicant for employment did in fact engage in the alleged behavior. You could speak with the arresting officer or the prosecutor to obtain additional information. We generally recommend speaking with the applicant himself/herself. Most often, when asked about the arrest, they will provide the additional details you need to make your decision.

Regardless of whether or not you consider non-convictions in your hiring process, the EEOC recommends that you consider the nature of the offense, time elapsed since the offense and the nature of the job. EEOC further recommends an Individualized Assessment to determine if the policy as applied is job related and consistent with business necessity. Click Here to read EEOC guidelines.

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