Arrests are different than convictions – find out why!
1. You May Incur the Wrath of the EEOC
The EEOC states in its Guidance, “an arrest does not establish that criminal conduct has occurred.” The EEOC has found that “a blanket exclusion of people with arrest records will almost never withstand scrutiny.” For an employer to determine whether the conduct actually occurred, the EEOC recommends an inquiry, allowing the applicant an opportunity to explain the arrest prior to any adverse action. The EEOC strongly cautions against making decisions based solely on arrest records.
2. Seven Year Limit
If you do decide to consider arrest or non-conviction records, only those within seven years of the actual defense are reportable. This was clarified in a Brief written by the FTC and CFPB in the case Moran v. The Screening Pros LLC. Thus, please keep in mind that a CRA should not report any non-conviction records over seven years, and if they do, you should not consider it.
3. Arrests Don’t Equal Convictions
Not everyone arrested is guilty of a crime. In the U.S., defendants are considered innocent until proven guilty. Try to remove any bias from preconceived notions about what an arrest means about character because without all the facts, you may be wrong.
4. If a Disposition is Available, You Should Have It
State repositories and the FBI databases have been consistently admonished for their incomplete records by multiple sources including the Justice Department. When using databases, whether state, FBI or commercial, you run the risk of obtaining only half the record. The most complete information, including dispositions, is always found at the court of record. If your searches routinely return arrests with no disposition information, you should seek a more reliable methodology.
