Understanding How Arrests Appear on Background Checks

Understanding how background checks work

What Happens During a Background Check?

When you apply for a job, especially in sensitive fields or in states like California, employers often run a background check. This process reviews your criminal history, employment background, and sometimes even your credit. The goal is to help employers make informed decisions about job seekers, while also complying with state and local laws. Background checks can reveal a range of information, from criminal records to pending charges, depending on the type of check and the laws in your area.

Types of Information Searched

Most background checks focus on criminal records, including arrests, convictions, and sometimes even pending charges. Employers may also look at your employment history, education, and professional licenses. In some cases, a background check might include a drug test. For example, understanding what a 13-panel drug test covers can be important if you’re applying for jobs in healthcare or transportation.

• Criminal background: Arrests, convictions, and pending criminal charges
• Employment background: Past jobs, positions held, and reasons for leaving
• Education: Degrees, certifications, and schools attended
• Other checks: Credit history, driving records, and drug screening

Why Employers Use Background Checks

Employers want to protect their workplace, customers, and reputation. By reviewing criminal records and other background information, they try to minimize risks. However, laws like "ban the box" and other state and local regulations limit how and when employers can ask about criminal history or arrest records. In California, for example, employers must follow strict rules about what information they can consider and when they can ask about arrests or convictions.

How Laws Affect Background Checks

Background check laws vary by state. Some states restrict reporting of certain arrests or convictions, especially if they did not lead to a conviction or are considered a class misdemeanor. The Fair Credit Reporting Act (FCRA) and state laws like California’s "ban the box" law protect job seekers from unfair discrimination based on their criminal record. Understanding these laws is crucial for both employers and applicants.

The difference between arrests and convictions

Arrests Versus Convictions: What’s the Real Difference?

When it comes to background checks, understanding the distinction between an arrest and a conviction is crucial. Many job seekers and employers alike are often confused by these terms, but the difference can have a significant impact on employment background decisions and legal rights.

Arrest: An arrest occurs when law enforcement takes someone into custody based on suspicion of a crime. This does not mean the person is guilty. Arrest records may include details like the date, charges, and whether the case is pending or resolved. In some states, including California, arrests that do not lead to convictions are not supposed to be considered in employment decisions, thanks to state and local laws and "ban the box" regulations. However, the presence of an arrest on a criminal background check can still raise questions for employers, especially if there are pending charges or a class misdemeanor involved.

Conviction: A conviction means a court has found the individual guilty of a criminal charge, either through a trial or a plea. Convictions are generally considered more serious than arrests in the context of background checks, as they indicate a proven criminal history. Employers are more likely to use conviction records when making hiring decisions, and these records typically stay on a criminal record for much longer than arrests.

• Arrest records may appear on some background checks, but their use is limited by law in many states.
• Convictions almost always appear on criminal background checks and are often a deciding factor in employment.
• Pending charges can also show up, depending on the state and the type of check being conducted.

Understanding these differences is key for both employers and job seekers. Employers must comply with state and federal laws regarding the use of arrest and conviction records, while job seekers should know their rights and options if an arrest or conviction appears on their background check. For more insights into how product and service failures can impact background check trends, check out our article on reputational risk in background checks.

Legal advice from a criminal defense attorney or a free consultation with a background check expert can help clarify how arrests and convictions may affect your employment opportunities, especially in states with strict ban the box laws like California.

When an arrest might show up on a background check

Factors That Influence Whether Arrests Are Reported

When it comes to background checks, the appearance of an arrest on your record depends on several factors. Not all arrests will automatically show up, and the details can vary based on state laws, the type of background check, and the status of the charges. Understanding these nuances is crucial for job seekers and employers alike.

• Type of background check: Some checks, like those for employment background screening, may focus on criminal convictions, while others might include arrest records, especially if the charges are pending.
• State and local laws: Jurisdictions like California have specific regulations about what can be reported. For example, California law generally prohibits employers from considering arrests that did not lead to conviction, except in certain cases involving law enforcement jobs or pending charges.
• Status of the arrest: If the arrest resulted in a conviction, it is more likely to appear. However, even if there was no conviction, pending charges or unresolved cases can still show up on a criminal background check.
• Time since the arrest: Some states limit how long arrest records can be reported. For instance, older arrests may not appear after a certain number of years, depending on state law and the class of misdemeanor or felony involved.
• Type of job: Certain positions, especially those involving vulnerable populations or sensitive information, may require more comprehensive criminal history checks, increasing the likelihood that arrests will be reported.

Common Scenarios When Arrests Appear

Arrests can appear on a background check in several situations:

• When the charges are still pending or unresolved
• If the employer is allowed by law to consider non-conviction records, such as in some state or local government roles
• For jobs not covered by "ban the box" laws, which restrict employers from asking about criminal history early in the hiring process

It’s also important to note that the details included in a background check can vary. Some checks may only show the fact of the arrest, while others might include information about the charges or the outcome. For more on how identification details are used in background screening, you can read about the role of ID cards in background checks.

Employers must balance their need to assess criminal background with compliance to state and federal laws. If you’re concerned about what might appear on your record, seeking a free consultation with a criminal defense professional can help clarify your rights and options.

How long do arrests stay on your record?

How Long Arrests Remain on Your Record

The length of time an arrest stays on your criminal record depends on several factors, including the state where the arrest occurred, the type of charges, and whether the arrest led to a conviction. In many states, arrests that did not result in a conviction can still appear on background checks, sometimes indefinitely, unless action is taken to remove them.

• State and Local Laws: Each state has its own laws about how long arrests and criminal records are reported. For example, California law restricts how employers can use arrest records that did not lead to convictions, especially for employment background checks. Some states limit reporting of non-conviction arrests to seven years, while others have no such limit.
• Type of Charges: The seriousness of the charges, such as a class misdemeanor or felony, can impact how long the arrest appears. Pending charges may also show up on a background check until resolved.
• Expungement and Sealing: In some cases, individuals can petition the court to have arrest records sealed or expunged, especially if the arrest did not lead to a conviction. This process varies by state and may require legal assistance or a free consultation with a criminal defense attorney.

Employers conducting criminal background checks may see arrests, convictions, and pending charges, depending on the state and the type of job. However, laws like "ban the box" and fair chance hiring rules limit how and when employers can ask about or use arrest records in employment decisions. Job seekers should be aware of their rights and the specific laws in their state regarding criminal records and employment background checks. It's important to note that even if an arrest does not result in a conviction, it may still appear on your criminal history or background check unless steps are taken to remove it. Understanding your state and local laws can help you navigate what will appear on your record and how long it will stay there.

What employers see and how they use arrest records

What Information Employers Can Access

Employers often use background checks to review a candidate’s criminal history before making hiring decisions. What shows up on a background check depends on the type of check, the state’s laws, and the employer’s policies. Typically, a background check can reveal:

• Arrest records (including pending charges and class misdemeanor charges)
• Convictions for criminal offenses
• Details about the nature of the charges and their outcomes

In states like California, there are specific laws that limit how much of your criminal record employers can see. For example, arrests that did not lead to a conviction are generally not reportable for most employment background checks. However, exceptions exist for certain jobs, especially those involving security or vulnerable populations.

How Employers Use Arrest and Conviction Records

Employers use criminal background checks to assess risk and make informed hiring decisions. They may look at both arrests and convictions, but the way they use this information is shaped by state and local laws. In many places, employers are not allowed to consider arrests that did not result in a conviction. Instead, they focus on convictions or pending criminal charges that are directly related to the job. Some employers follow "ban the box" or "ban box" laws, which prevent them from asking about criminal history on initial job applications. These laws aim to give job seekers with a criminal record a fair chance at employment. Employers must also comply with federal guidelines, such as those from the Equal Employment Opportunity Commission (EEOC), which recommend considering the nature of the offense, how much time has passed, and its relevance to the job.

State and Local Law Protections

State and local laws play a big role in what employers can see and use from your criminal background. For example, California law restricts the use of certain arrest records and requires employers to consider the circumstances of any criminal charges. Some states have laws that allow for expungement or sealing of arrest records, which can help job seekers move forward without old arrests appearing on background checks.

What Employers Cannot See

There are limits to what can appear on a background check. Arrests that did not lead to conviction, sealed or expunged records, and certain minor offenses may not be visible to employers. However, pending charges and recent arrests can still appear, depending on state law and the type of background check conducted. If you have concerns about what might show up on your employment background check, consulting with a criminal defense attorney or seeking a free consultation can help you understand your rights and options.

Your rights and options if an arrest appears on your background check

Knowing Your Legal Protections

When an arrest shows up on your background check, it’s important to understand your rights under state and federal law. In the United States, laws like the Fair Credit Reporting Act (FCRA) regulate how background checks are conducted and what employers can do with arrest records. Some states, such as California, have even stricter rules about what information can be reported and used in employment decisions. For example, in California, employers generally cannot consider arrests that did not lead to conviction, or certain older criminal records, when making hiring decisions.

What You Can Do If an Arrest Appears

• Request a Copy of Your Background Check: If you’re denied employment based on your criminal background, you have the right to see the report used in the decision. This helps you verify if the information is accurate and up to date.
• Dispute Inaccuracies: If you find errors—such as an arrest that didn’t result in a conviction, or outdated records—you can dispute them with the background check company. They are required by law to investigate and correct any mistakes.
• Understand "Ban the Box" Laws: Many states and localities have adopted "ban the box" laws, which prevent employers from asking about criminal history on initial job applications. This gives job seekers a fairer chance to be evaluated on their qualifications first.
• Know the Limits on Reporting: In most states, arrests that did not lead to conviction cannot be reported after seven years. However, this varies by state and by the type of job, especially for positions involving vulnerable populations or sensitive information.
• Seek Legal Advice: If you believe your rights have been violated, or you’re unsure about how your criminal record might impact your employment background check, consider consulting a criminal defense attorney. Many offer a free consultation to discuss your situation and options.

How Employers Use Arrest Records

Employers must follow the law when considering arrest records in the hiring process. They are typically not allowed to use arrests alone as a reason to deny employment, especially if there was no conviction. Instead, they may look at the nature of the charges, whether they are pending, and how they relate to the job. For example, a pending class misdemeanor may be treated differently than a past conviction for a serious offense. Employers in California and other states with strong protections must be particularly careful to comply with state and local laws regarding criminal background checks.

Taking Control of Your Criminal Record

If you have arrests or criminal charges on your record, you may be able to take steps to clear or seal them, depending on state law. Expungement or record sealing can help prevent old arrests or convictions from appearing on future background checks. It’s worth exploring these options with a legal professional, especially if you’re actively seeking employment and want to improve your chances with employers who conduct criminal background checks.