Hiring managers look to criminal background checks to provide accurate and relevant data for their hiring decisions. When a criminal background check reveals an arrest or conviction, it doesn't necessarily mean that the candidate is no longer eligible for the job. Unfortunately, it's not that cut and dry. The manager has a lot to consider:
- Can they use arrest records without conviction?
- Does the record pass individualized assessment?
- Are the records true, timely and accurate?
It's important to understand the data that is provided in a criminal background check and when it's available. There could also be criminal charges that haven't made it to the report yet.
Let's take a closer look ...
When Do Criminal Charges Show up on a Background Check?
Where Does Criminal Background Check Information Come From?
In order to determine where the background check data comes from, it's best to consider the different types of criminal background checks:
- National Criminal Database and Sex Offender: This data is a multi-state and generally instant search that comes from participating jurisdictions, department of corrections court records, traffic court records and sex offender records.
- Federal Criminal Search: These violations of federal law are pulled from one or more of the 94 U.S. Federal district courthouses across the nation.
- Statewide Criminal Search: Felonies, misdemeanors and traffic violations are consolidated for each state.
- County Criminal Search: Data from county courthouses are typically the most up-to-date and often may have to be obtained manually.
- International Watch List: For those who've been identified as a threat to the United States, they will be identified on this list.
How Accurate is the Criminal Background Data?
Depending on which criminal background check is used, the data could be fairly accurate or out of date. For instance, some courthouses or jurisdictions may not report as regularly as others. A state charge, for instance, may have been completely resolved by the time it appears on a criminal background check. State courts do not update as quickly as others, in most cases, so a current charge wouldn't be added for weeks.
If there is a pending criminal charge, those charges likely appear at the county level. A background check provider would need to access the records electronically or manually to obtain a record of the most up-to-date criminal charges. County criminal searches take a little longer, and could be more costly, but hiring managers will have the most up-to-date information on their candidate.
Which Criminal Records Negate a Job Offer?
When considering criminal records in employment decisions, hiring managers need to make sure they're in compliance with employment laws. For instance, does the city or state have a "ban the box" law or other "fair chance" laws that prohibit employers from asking about criminal convictions or using arrest records? Many states have laws and the EEOC recommends against using arrest records if it didn't lead to a conviction.
The EEOC also recommends an Individualized Assessment before withdrawing a job offer based on criminal background checks. This assessment, in combination with a decision matrix helps employers to reduce hiring bias so that employment decisions are mostly fair and impartial. The employer must assess each candidate on a case-by-case basis to determine if the criminal record would affect job performance.
Employers must also follow FCRA compliant pre-adverse and adverse action before withdrawing a job offer. These notices allow candidates to dispute inaccurate information, again ensuring that hiring is non-discriminatory and accurate.