Can Employers Consider Protest Arrests on Employment Background Checks?

As the COVID-19 pandemic continues, the world's attention now includes protests in response to the death of George Floyd. Social media and video postings have brought to light individual reactions to the ongoing events and employers have been forced to address issues of discrimination and harassment in the workplace. Another consideration for employers is a potential arrest record when those individuals speak out or stand with protesters.  

Should employers consider arrest records from protests on employment background checks?

Arrested for Protesting

Thousands of individuals have been and continue to be arrested at protests across the nation.  Many of the offenses have been minor, including violating curfew or failing to disperse. Still others have been arrested for looting, burglary, assault or destroying property. An even smaller number of individuals were simply in the wrong place at the wrong time, such as out for a walk or standing nearby and shooting video of the protests. 

While American citizens do have the right to "peacefully assemble" in a public space, some of those protesting have gotten in trouble for blocking traffic, jay-walking or simply not staying peaceful.  Some have stated that they were detained but were never read their Miranda rights or charged with anything. Some were simply given a summons to appear in court. Should employers be concerned with arrests made at these protests?

See Also: Which Criminal Background Search is Best for Your Company?

Arrest Records on Background Checks

As a best practice, employers have the option to limit the data shown on a background report from a professional background check company. VeriFirst, as an example,  offers custom filtering and screening matrices to help match the hiring policies of employment clients. Employers have the option of filtering out any arrest record that did not lead to a conviction, regardless of the time since arrest. Federal law says arrests can show for 7 years regardless of disposition, however, many employers may only want to know about convictions.

Some employers might take it a step further. The background check company should be able to tailor the background report data to match the employer's hiring or decision matrix. For example, if a conviction for disorderly conduct or disturbing the peace aren’t important or relevant to the job, these can be filtered out before a hiring manager ever has to see them.

Note that any custom filtering and screening matrices must be provided by the employer. Screening companies should not be interpreting what “might” matter and what “might not” matter. Ultimately, it’s the employer's decision to accept or dent a candidate. The screening company’s job is to make sure they provide a relevant, thorough, and up-to-date background check report in full compliance with Federal and State regulations.

What to Consider When Considering Criminal Background Checks

If employers are looking to save time and money and still hire a respectable quality employee who fits the job description, a criminal background screening policy and an decision matrix (or hiring matrix) are both highly recommended. A criminal background screening policy will ensure that hiring managers are consistently considering criminal offenses, how far back to look and which offenses would affect the function of certain jobs. A decision matrix provides a clear policy for disqualifying candidates for particular criminal offenses and convictions. The EEOC suggests that employers have these things documented so that applicants don't face broad discrimination for having negative marks on their criminal background check reports. 

Employers do have a right to ensure the safety and well-being of their employees. Individuals and employment applicants also have a right to know what information is being used against them. Background screening partners can provide guidance to ensure employer policies are not discriminatory or in non-compliance with the FCRA.

Want to learn more about hiring policies and criminal background checks?
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