In today’s competitive job market, background checks are a standard part of the hiring process. Employers use them to make informed decisions about potential employees. However, there’s often confusion about what exactly shows up on a background check, especially regarding arrests and convictions. Understanding the difference between the two can help both employers and job seekers navigate this crucial aspect of the hiring process more effectively. 

The Basics of Arrests and Convictions 

• Arrests: Arrests occur when a person is taken into custody by law enforcement on suspicion of having committed a crime. An arrest does not mean the person is guilty; it indicates there is probable cause to believe the individual was involved in criminal activity. Following an arrest, the legal process determines whether the person will be charged, tried, and potentially convicted. 
• Convictions: Convictions occur when a person is found guilty of a crime in a court of law. This can happen through a trial, a plea deal, or other legal proceedings. A conviction indicates that the person has been legally determined to have committed the offense. 

What Shows Up on a Background Check? 

When it comes to background checks, the information that appears can vary depending on several factors, including the type of background check conducted, the state laws governing background checks, and the policies of the company performing the check. Here’s a breakdown of how arrests and convictions might appear: 

Arrests 

• Pending Charges: If the arrest led to pending charges, these might also show up on a background check, depending on state laws and the type of check conducted. 
• Dismissed Charges: If the charges were dismissed or the individual was acquitted, this information might still appear on some background checks. However, federal guidelines generally prohibit employers from making hiring decisions based solely on dismissed charges. 
• Sealed or Expunged Records: In some cases, arrest records can be sealed or expunged, meaning they are not accessible during a standard background check. Individuals who have had their records sealed or expunged should verify that this information does not appear on their background check. 

Convictions 

• Misdemeanors and Felonies: Both misdemeanor and felony convictions usually show up on a background check. The severity of the offense can impact how it is perceived by potential employers. 
• Time Frame: Some states have laws that limit how long certain types of convictions can appear on a background check. 
• Pending Appeals: If a conviction is under appeal, this might also appear on a background check, depending on state laws and the specifics of the check conducted. 

Legal Considerations for Employers 

Employers must navigate a complex landscape of federal, state, and local laws when using background checks in their hiring processes. Key legal considerations include: 

• Fair Credit Reporting Act (FCRA): The FCRA sets guidelines for how background checks can be conducted and used by employers. It requires employers to obtain written consent from the candidate before conducting a background check and to provide a copy of the report if adverse action is taken based on its contents. 
• Equal Employment Opportunity Commission (EEOC) Guidelines: The EEOC advises employers to consider the nature and gravity of the offense, the time that has passed since the offense or completion of the sentence, and the nature of the job being sought. This individualized assessment helps ensure that decisions are not discriminatory. 
• State Laws: State laws can vary significantly regarding what information can be included in a background check and how it can be used. For example, some states prohibit the use of arrest records in hiring decisions, while others have "ban the box" laws that restrict when employers can ask about criminal history. 

Best Practices for Employers 

Employers can adopt several best practices to ensure they are using background checks fairly and effectively: 

• Clear Policies: Develop clear, written policies on how background checks will be used in the hiring process. Ensure these policies comply with all relevant laws and regulations. 
• Individualized Assessments: Conduct individualized assessments of candidates with criminal records, considering the nature of the offense, its relevance to the job, and evidence of rehabilitation. 
• Transparency: Communicate openly with candidates about the background check process and provide them with an opportunity to explain any findings that may arise. 
• Consult Legal Counsel: Given the complexity of laws governing background checks, it is advisable for employers to consult with legal counsel to ensure compliance and avoid potential legal pitfalls. 

Advice for Job Seekers 

For job seekers, understanding what may appear on a background check can help in preparing for the hiring process: 

• Be Honest: Be upfront about your history when asked. Providing context and demonstrating how you have moved past previous issues can help mitigate concerns. 

Conclusion 

Understanding the difference between arrests and convictions and what shows up on a background check is crucial for both employers and job seekers. Employers must navigate a complex legal landscape to use this information fairly, while job seekers can take proactive steps to manage their records and present themselves in the best possible light. By fostering transparency and fairness, both parties can contribute to a more equitable hiring process.