Employee Criminal Record: Arrest vs. Conviction

When you find a top notch candidate, but they have an employee criminal record!

Imagine, for a moment, that you are conducting a background check on a top notch candidate. Everything is going perfectly, until you discover that your prospect has an employee criminal record. While your first instinct might be to immediately relegate their application to the trash, you may want to read on before you do.

The Difference Between Arrest and Conviction Records

It’s always shocking to discover a negative mark on someone’s history, but before you dismiss them as not criminally suited to work for you, you probably want to consider the difference between an arrest and a conviction.

Under US law, people don’t have to be guilty of a crime to be arrested, there just needs to be a reasonable belief that they may have broken the law. In many cases, people are falsely accused of crimes by family or former partners, and in others, they are the victim of circumstance, or just in the wrong place at the wrong time.

An arrest record is not definitive proof that someone broke the law. It simply indicates that there was a suspicion that they may have. Conviction records, on the other hand, are created when a suspect has gone through the legal system, and been found guilty of a crime in a court of law. They may also have confessed, or settled out of court.

Again, even conviction records are not definitive proof that the person in question did commit a crime, just that they were judged guilty by a court of law. They are a stronger indicator of criminal liability though, and they definitely carry more weight.

Handling an Employee Criminal Record

It’s not against the law to exclude candidates from the hiring process, provided you treat everyone equally. Accord to US law, you are not guilty of discriminating against candidates based on negative criminal history, so long as you treat all candidates the same.

That means that you cannot exclude one candidate of a particular group, but allow another one to continue in the process. This includes anybody with an employee criminal record.

Candidates have a right to know that you are running background checks, and to know which negative information you have discovered, and why they are being excluded from the hiring process.

Discuss Records with the Candidate

In many ways, an arrest record can be worse for candidates than cases where they went to trial and were acquitted. In the case of the former, there’s always a lingering question about whether they were indeed guilty of a crime, whereas in the case of the latter, there’s a conclusive verdict of innocence, which clears their name.

If you do discover something negative in a candidate’s history, it’s always a good idea to discuss the issue with them, and get their side of the story.

Don’t Run Unnecessary Checks

You may think that you need to know everything about a candidate’s history, and there are certainly things that you do need to discover about potential new hires. Sometimes hiring managers delve too deeply into records that don’t necessarily have bearing on a position, however, and discover things that they don’t need to know and that complicate the hiring process.

As a professional screening company, one of our functions is to restrict background checks to information that matters, and to keep our clients focused. Before you do your own screening, figure out what really matters to the position you’re looking to fill. Unless an employee criminal record has bearing on the work, don’t allow it to muddy the waters. It will save you a lot of potential trouble, and may help to ensure that you don’t exclude the ideal candidate on a technicality.

 

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