Reporting Convictions vs. Arrests

Employment background checks and the use of arrest records by state can vary significantly across the United States due to differing state laws and regulations. It’s important to note that arrest records and conviction records are not the same, and their use in background checks can differ. Here are some key points to consider:

Arrest Records vs. Conviction Records:

Arrest records document when a person is taken into custody but there is no finding or admission of guilt. Conviction records, on the other hand, show that a person has been found guilty of a crime in a court of law.

Fair Credit Reporting Act (FCRA):

The FCRA governs background checks conducted by consumer reporting agencies (CRAs). Under the FCRA, arrest records that are more than seven years old are not reportable on background checks. Whereas convictions can be reported no matter how old they are as long as there are no state laws prohibiting it. For example, California only allows the reporting of convictions for the past 7 years.  

State-Specific Laws:

Each state has its own laws and regulations regarding the use of arrest records in employment background checks. Some states restrict or prohibit employers from considering arrest records that did not lead to a conviction. Other states may allow employers to use arrest records in hiring decisions but may have limitations on the types of offenses or how far back they can consider such records.

EEOC Guidance:

The Equal Employment Opportunity Commission (EEOC) provides guidance on the use of arrest and conviction records in employment decisions. Employers are advised to consider factors such as the nature of the offense, the time elapsed, and the relevance to the job when using such records.

It’s crucial for employers to be aware of the specific laws in their state and to stay informed about changes in regulations regarding the use of arrest and conviction records in employment background checks.

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