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Checking Arrest Records
http://www.toolkit.cch.com/text/P05_1610.aspRoutine checking of arrest records isn't permitted. An arrest record alone is not proof that an applicant committed a crime.
In the event that you are permitted to check arrest records, in order to deny employment on the basis of an arrest record, you must:
 | consider the relationship of the arrest charge to the position applied for |
| determine the likelihood that the applicant actually committed the conduct alleged in the arrest |
If the arrest is related to the position, you must still:
| look at surrounding circumstances |
| offer the applicant the chance to explain |
| make follow-up inquiries to evaluate the applicant's credibility |
Generally, applicants do not even have to disclose any information concerning arrest or criminal charges that did not result in conviction.
A number of states have laws that grant applicants and employees certain protections against criminal disclosure based on privacy concerns.
Read our case studies for examples of how to use and evaluate arrest records.
Case Study — Using Arrest Records
These case studies are legally applicable only if you are subject to federal antidiscrimination laws (15 or more employees). Even if you aren't, they are still good guides for evaluating and using arrest records.Case Study 1. Wilma applies to Bus Inc. in Highway City for a position as a bus driver. In response to a preemployment inquiry, Wilma states that she was arrested two years earlier for driving while intoxicated. Bus Inc. rejects Wilma, despite her acquittal after trial.
Bus Inc. does not accept her denial of the conduct alleged and concludes that Wilma was acquitted only because the test to determine her blood alcohol level performed at the time of her arrest was not administered in accordance with proper police procedures and was therefore inadmissible at trial. Witnesses at Wilma's trial testified that after being stopped for reckless driving, Wilma staggered from the car and had alcohol on her breath.
Bus Inc.'s refusal to hire Wilma is justified because the conduct underlying the arrest, driving while intoxicated, is clearly related to the safe performance of the duties of a bus driver, and occurred fairly recently. Also, there was no indication of subsequent rehabilitation.
Case Study 2. Lola applies to Bus Inc. for a position as a bus driver. In response to an inquiry whether she had ever been arrested, Lola states that she was arrested five years earlier for fraud in unemployment benefits. Lola admits that she committed the crime alleged.
She explains that she received unemployment benefits shortly after her husband died and her expenses increased. During this period, she worked part-time for minimum wage because her unemployment check amounted to slightly less than the monthly rent for her meager apartment. She did not report the income to the State Unemployment Board for fear that her payments would be reduced and that she would not be able to feed her three young children. After her arrest, she agreed to, and did, repay the state.
Bus Inc. rejected Lola. However, in this case, Lola's rejection violated federal antidiscrimination laws. The commission of fraud in the unemployment system does not constitute a business justification for the rejection of an applicant for the position of bus driver. The type of crime that Lola committed is totally unrelated to her ability to safely, efficiently, and courteously drive a bus. Furthermore, the arrest was not recent.
