Not every arrest appears on a background check, and not every conviction can be used in hiring decisions. Here's what employers need to know.

The job market is very competitive these days, and background checks have become a standard part of the hiring process. Employers use them to make informed decisions about potential employees.

However, there’s often confusion about what exactly shows up on a background check, especially regarding arrests and convictions. Understanding the difference between the two can help both employers and job seekers navigate this crucial aspect of the hiring process more effectively.

The Basics of Arrests and Convictions 

Arrests: An arrest occurs when a person is taken into custody by law enforcement on suspicion of having committed a crime. An arrest does not mean the person is guilty; it indicates there is probable cause to believe the individual was involved in criminal activity. Following an arrest, the legal process determines whether the person will be charged, tried, and potentially convicted.

Convictions: Convictions occur when a person is found guilty of a crime in a court of law. This can happen through a trial, a plea deal, or other legal proceedings. A conviction indicates that the person has been legally determined to have committed the offense.

Arrests vs. Convictions: What Can Be on a Background Check? 

When it comes to background checks, the information that appears can vary depending on several factors, including the type of background check conducted, the state laws governing background checks, and the policies of the company performing the check. Here’s a breakdown of how arrests and convictions might appear:  

Arrests

Pending Charges: If the arrest led to pending charges, these might also show up on a background check, depending on state laws and the type of check conducted.

Dismissed Charges: If the charges were dismissed or the individual was acquitted, this information might still appear on some background checks. However, EOCC guidelines generally prohibit employers from making hiring decisions based solely on dismissed charges.

Sealed or Expunged Records: In some cases, arrest records can be sealed or expunged, meaning they are not accessible during a standard background check. Individuals who have had their records sealed or expunged should verify that this information does not appear on their background check.

Convictions

Misdemeanors and Felonies: Both misdemeanor and felony convictions usually show up on a background check. The severity of the offense can impact how it is perceived by potential employers.

Time Frame: Some states have laws that limit how long certain types of convictions can appear on a background check.

Pending Appeals: If a conviction is under appeal, this might also appear on a background check, depending on state laws and the specifics of the check conducted.  

Legal Considerations for Employers 

Employers must navigate a complex landscape of federal, state, and local laws when using background checks in their hiring processes. Key legal considerations include:

Fair Credit Reporting Act (FCRA)

The FCRA sets guidelines for how background checks can be conducted and used by employers.

• Requires written disclosure + written consent before any background check

• Employers must clearly state that the report will be used for hiring decisions

If Information May Affect Hiring

• Send the pre-adverse action notice first

• Share a copy of the report + FCRA rights summary

• Give the candidate at least 5 business days to review and dispute errors

• Send the final adverse action notice if the decision is confirmed

Candidate Rights

• Access to their background report

• Right to dispute incorrect information

• Right to have errors reinvestigated

• Right to know the reporting agency

Core Rule for Employers

• Follow a fair, documented process every time

• Ensure accuracy before making decisions

• Missing steps = FCRA violation risk

Equal Employment Opportunity Commission (EEOC) Guidelines

• EEOC enforces anti-discrimination laws in hiring decisions

• Employers cannot treat candidates differently based on race, color, national origin, sex, religion, disability, genetic information, or age (40+)

Use of Criminal Records in Hiring

• Employers can consider criminal records, but only in a job-related way

• A criminal record alone cannot automatically disqualify a candidate

• Arrest records cannot be used as an excuse to deny employment unless the conduct surrounding the arrest makes the individual unfit for the position in question.

• Convictions can be considered, but must be evaluated fairly

Required Fair Assessment

Employers must consider:

• Nature and seriousness of the offense

• How much time has passed since the offense

• Relevance of the offense to the job role

Discrimination Risk

• Blanket “no criminal record” policies may be illegal if they disproportionately impact protected groups

• Policies must be job-specific and justified by business necessity

• Employers must avoid decisions based on assumptions or stereotypes

State Laws

Background check rules change from state to state. States can add extra rules on top of FCRA and EEOC. Common state rules are:

Ban the Box laws: Employers must wait until later in hiring to ask about criminal history

Limits on arrest records: Some states do not allow arrests (without conviction) to be used

Lookback limits: Older convictions may not show after a set number of years

Expunged records: Sealed or cleared records cannot be used or reported

Extra restrictions in some states: Especially for lower-paying jobs or certain industries

Best Practices for Employers 

Employers can adopt several best practices to ensure they are using background checks fairly and effectively:

Clear Policies: Develop clear, written policies on how background checks will be used in the hiring process. Ensure these policies comply with all relevant laws and regulations.

Individualized Assessments: Conduct individualized assessments of candidates with criminal records, considering the nature of the offense, its relevance to the job, and evidence of rehabilitation.

Transparency: Communicate openly with candidates about the background check process and provide them with an opportunity to explain any findings that may arise.

Consult Legal Counsel: Given the complexity of laws governing background checks, it is advisable for employers to consult with legal counsel to ensure compliance and avoid potential legal pitfalls.

Advice for Job Seekers 

For job seekers, understanding what may appear on a background check can help in preparing for the hiring process. This way, they can avoid and address red flags that may affect the hiring decision.

Be honest: Share accurate information when asked—lying or hiding details can create bigger issues later

Know what shows up: Review your record in advance so there are no surprises during screening

Provide context: If something appears, briefly explain the situation and what has changed since then

Show improvement: Highlight work history, skills, and steps you’ve taken to move forward

Check your records: Request your own background report to spot and correct errors early

Conclusion 

Understanding the difference between arrests and convictions, and what appears on a background check, is crucial for both employers and job seekers. Employers must navigate a complex legal landscape to use this information fairly, while job seekers can take proactive steps to manage their records and present themselves in the best possible light. By fostering transparency and fairness, both parties can contribute to a more equitable hiring process.

Frequently Asked Questions

What information shows up on a criminal background check?

It can include convictions, pending charges, and sometimes arrest records, depending on state law and the type of check.

Do arrests appear on a background check?

Sometimes, but not always. Many states limit or restrict the use of arrest records, especially if there is no conviction.

Are expunged or sealed records visible?

No. Expunged or sealed records are legally removed from standard background checks and should not appear.

Do all jobs require the same level of checks?

No. The depth of a background check depends on the job role, industry, and legal requirements.

How should companies handle adverse action?

They must send a pre-adverse notice, share the report and rights, allow time for review/dispute, and then issue a final adverse action notice if needed.