Criminal background checks have become nearly universal among employers, and they provide critical information to help organizations manage potential hiring risks. According to a 2020 Professional Background Screening Association (PBSA) study, 93 percent of employers use national criminal databases and 85 percent use state, county, or local sources for all or some candidates.

In addition to locating convictions and criminal charges, a criminal records search at the county, state, or federal level can also include arrest records for a range of felony or misdemeanor crimes. However, while arrest records can help to complete the picture of a candidate’s criminal past, there are several instances where you shouldn’t include them in your criminal background checks.

What Do Criminal Record Checks Review?

Criminal record checks help you understand any past candidate behaviors which could pose a risk to your workplace. Criminal background checks typically include information dating back seven years, but may go back further in states where it is permitted. 

They can uncover any of the following elements in a person’s background:

  • Felony convictions
  • Misdemeanor convictions
  • Criminal charges
  • Sex offender list registrations
  • Arrest records 
  • Incarceration records

There are many different databases and lists from which a candidate’s criminal records can be sourced, but a criminal records search is about more than downloading “hits” from a database. A thorough background screening provider understands that any arrest, charge, or conviction information sourced from these databases and lists must also be verified with a primary source, such as an actual court search. In addition, a compliance-minded screening provider excludes criminal history information prohibited by law in some locations, for example, expunged or juvenile records.

The many types of criminal record checks include:

  • County court records search: Searches county criminal records for convictions or pending cases from at least the past seven years
  • CrimeSweep state database search: Searches a state-based aggregate of criminal information resources
  • Federal court records search: Searches U.S. federal district court files for felony and misdemeanor records
  • CrimeSweep sex offender search: Searches a database compiled from registries in all 50 states and the District of Columbia, as well as several tribal land registries
  • CrimeSweep national search: Searches an aggregate of databases for county, state, and federal entities, as well as incarceration and law enforcement records
  • Fingerprint search: Cross-checks candidate fingerprints against a database of criminal fingerprints, and includes fingerprints of individuals who have been arrested and booked at a police precinct

Why or Why Not Include Arrest Records?

When arrest records are included as part of a comprehensive criminal background check, they can provide some needed context about a person’s criminal past. They can help you see if a person had multiple arrests, or repeated arrests for the same crime. 

However, an arrest is different from a conviction. On its own, an arrest record only tells part of the story. Here are the many reasons why you shouldn’t rely solely on arrest records in criminal background checks:

1. It could be discriminatory.

While there’s nothing wrong with including arrest records in a candidate’s comprehensive background check, using arrest records solely to make an employment decision could lead to illegal, discriminatory hiring practices. According to the Equal Employment Opportunity Commission (EEOC), unlike a conviction record, “an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.” 

Relying solely on arrest records could discriminate against racial and ethnic minorities, and even younger candidates. People under the age of 26 are more likely to have an arrest record than any other generation, according to a RAND study.

2. An arrest is not the same as criminal conduct.

An arrest does not imply guilt. A person can be arrested on suspicion of a crime but may not have committed one. By basing an employment decision on an arrest record, you could end up excluding a significant number of potentially strong candidates from your hiring process. 

Arrests are more common than you might think. According to The Sentencing Project, one in three U.S. adults has been arrested by age 23. Arrests are not necessarily a precursor to a serious charge or conviction. A candidate who was arrested may never be charged or prosecuted, or may be charged but found innocent. According to Crime in America, up to half of federal crimes are never prosecuted, and 34 percent of state felony cases do not result in a conviction.

3. Every arrest is different.

Just as an arrest may never have resulted in a charge or conviction, some arrests may not be serious enough to cause concern for employers. For example, a candidate could have been arrested for a non-violent crime you may deem less relevant for the position, such as an arrest for public protest or a minor traffic violation. It is also possible a candidate could have a past arrest for activity which is no longer considered criminal, for example, possession of marijuana in a state where it has since been legalized

4. Some states forbid consideration of arrest records for employment.

Although there is no federal law prohibiting the use of arrest records in the hiring process, there are state and local “ban the box” laws restricting it. Some states prohibit employers from asking about arrest records, arrests not resulting in conviction, and/or arrests that have been expunged, sealed, or dismissed. Those states include California, Connecticut, Hawaii, Massachusetts, and New York.

Best Practices for Criminal Background Checks

Conducting criminal background checks effectively involves more than checking databases and lists for a candidate’s past criminal history. There are also specific actions you can take to manage potential risks and consider criminal records results in compliance with the law. 

For consistently accurate and thorough results, incorporate the following best practices into your background screening program:

Understand “ban the box” laws.

Applicable ”ban the box” laws tell employers when in the hiring process they can conduct a criminal background check. These laws also prevent some employers from asking candidates if they have ever been arrested, and prohibit the use of arrest records in employment decisions. 

There are dozens of state laws and hundreds of county and municipal laws, some differing within the same state. As a result, you should be sure your organization’s criminal background check activities comply with “ban the box” laws in the locations where you hire.  

Establish a policy for criminal background checks.

To establish consistency and fairness, set a policy to guide your background screening practices. You should also spell out the job categories where you will consider arrests, for example, positions working with vulnerable populations such as the elderly, the sick, or children. By reviewing your policy regularly, you can keep it aligned with screening practices and compliance requirements.

Work with a reputable background screening provider.

Criminal background checks involve many data sources and methods for verifying and reporting data. As a result, you can maintain a compliant and effective screening program by working with a provider who possesses the knowledge and expertise to guide your screening activities. With a great screening provider as your partner, you can confidently select the criminal background check services you need and receive guidance for when to (and when not to) consider candidate arrests in hiring decisions.

Get a Comprehensive and Compliant Criminal Background Check

In many ways, criminal background checks form the backbone of your background screening program, but they must be conducted in compliance with the law and take into account best practices for data collection and verification. Knowing when to consider arrest records is only one part of effective background screening. 

For more tips and advice, check out our Guide to Current “Ban the Box” Legislation.

Ban the box laws