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Using Arrest History Records on Pre-Employment Background Checks

Using Arrest History Records Wisely

The level of deception, dishonesty, and behavior of some society members never ceases to amaze me. When I first entered the Consumer Reporting field, we did the basic pre-employment background and arrest history records check that gave employers knowledge of potential employees’ past decisions and actions.  However, as the proliferation of drugs and criminal activity has increased, we are now finding a much deeper level of duplicity and ongoing and continued efforts of felons to hide past behavior.  Unfortunately, this level of deceitfulness has become normal among the underbelly of our society. As a result, we have needed to stay diligent in circumventing and screening candidates at greater detail and aggressiveness.  As Human Resource Managers and as employers, we have to protect ourselves, our clients, and our customers from introducing these negative cultures.

Tips for Carefully Using Arrest Record on Pre-Employment Background Checks

One of the most egregious scenarios I’ve run across is the travesty of Adrian Wright. Adrian was a former Baton Rouge Middle School Janitor arrested for raping a student at the school. By the time the victim came forward, and action was taken against Wright, he was already in prison, serving a ten-year sentence for an auto theft incident that occurred a few years earlier.  The auto theft incident eventually resulted in prison time and occurred eight months before committing the rape as an employee.

This event demonstrates the necessity of keeping tabs on employees’ criminal activity regularly, especially when workers interact with children. Also, lawfully obtaining all background information available in the pre-hire process is also crucial. In this case, Wright underwent a pre-employment background check that came back clean despite two recent, potentially concerning arrests. Wright’s arrests both during and before his employment with the school should have been discovered and evaluated carefully. The school didn’t adequately protect itself or its students. They did not use an accredited background check provider that could uncover his entire history. They also made the mistake of not improving their ongoing and regular background checks for all current employees.

Instead of this tragic incident, here are some recommendations for evaluating arrest history records for employment purposes:

1. Be aware of state laws

Some states ban the use of arrest records for employment decisions, and some states allow them under certain circumstances, most commonly if the arrest resulted in a conviction. Other states, such as the setting of the story above in Louisiana, do not have laws on the books preventing arrest history records for employment.

Even if state laws don’t ban arrest records for employment consideration, the Equal Employment Opportunity Commission (EEOC) will penalize companies who don’t consider their guidance of:

  • Evaluating the nature and gravity of the criminal offense or conduct
  • Determining how much time has passed since the offense or sentence
  • Examining the number of convictions or other arrests the applicant has on his/her record
  • Considering the facts surrounding each offense; are there any mitigating circumstances
  • Review the applicant’s efforts at rehabilitation
  • Examine the nature of the job

I would advise organizations to use arrest records (especially those not resulting in a conviction) as a platform for conversation with the applicant to evaluate a fit for the job better.  We do not recommend denying employment based solely on arrest records.

2. Make well-informed decisions

For jobs involving interaction with children or ones requiring a high-security clearance for any reason, I recommend the implementation of a policy for conducting background checks on current employees. If offenses have occurred since the pre-hire background check, uncovering them can prevent future problems. Again, use caution when evaluating employees’ arrest records. Talk to the employee and track the progression of pending cases to make a well-informed decision.

3. Utilize all available tools

Ensure your background check provider has the tools and know-how to provide all the information possible to promote a carefully considered, lawful employment decision.

Over the past few decades, I’ve seen thousands of records literally. The purpose of these records is to mitigate the risks associated with improper hiring and to ensure safety is paramount. In Adrian Wright’s case, it is miserable that a child was hurt due to a failure of background check practices. In your business, look for a vendor who advocates using all available, lawfully utilized tools, including arrest records for background checks. This will ensure you protect not only your business but also promote public safety.

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