Can Employers See Arrest Records on a Background Check?

Arrests vs. Convictions: A Critical Distinction

An arrest record indicates that someone was taken into custody. A conviction means a court found them guilty. These are very different things, and the law treats them differently.

An arrest without a conviction — a dismissed case, a not guilty verdict, or charges that were never filed — should generally not be used in hiring decisions. Doing so can expose employers to discrimination claims and violates the laws of many states.

What Typically Shows Up on a Background Check

A standard criminal background check searches court records, not police records. What shows up depends on how the court recorded the case:

• Convictions: Misdemeanor and felony convictions are typically reported
• Pending charges: Open cases where a verdict has not yet been reached
• Arrests without conviction: May appear in some databases, depending on how records were indexed
• Expunged or sealed records: Generally should not appear, though database errors do occur

EEOC Guidance on Arrest Records

The Equal Employment Opportunity Commission (EEOC) has issued clear guidance stating that employers should not use arrest records alone as the basis for an adverse hiring decision. An arrest is not proof of wrongdoing. Using arrest records disproportionately screens out certain racial and ethnic groups, which can create disparate impact liability under Title VII.

The EEOC recommends that employers who consider criminal history conduct an individualized assessment — examining the nature of the offense, how long ago it occurred, and how it relates to the specific job.

State Laws Further Restrict Use of Arrest Records

Several states go beyond EEOC guidance and explicitly prohibit or limit the use of arrest records in employment decisions:

• California: Employers generally cannot consider arrests that did not result in conviction
• New York: Strict limits on how criminal history can be used; candidates must be evaluated individually
• Massachusetts: Only convictions within the last 3 years can be considered for most positions
• Pennsylvania: Has its own restrictions on criminal history use under the CHRIA

What Employers Should Do

1. Work with a background screening company that understands what to report and what not to report
2. Train hiring managers not to automatically disqualify candidates based on arrest records
3. Conduct individualized assessments when criminal history is relevant to the role
4. Document your decision-making process for every candidate where criminal history was a factor

At Do It Right Screening, we help employers understand what information they can lawfully use and how to build a compliant screening program. Contact us to review your current approach.