HR Question of the Month: Arrest Record

Words: Lisa Hagenson

Question
As a last step in our hiring process, we require a candidate to pass a background check after they have been interviewed. Recently, a background check came back with an arrest listed. Are we allowed to turn down the candidate due to the arrest?

Answer
Employers can consider criminal records when they make the final decision about hiring. An employer considering criminal records in hiring decisions should assess whether the record is relevant to the job. An employer can assess the relevance of a person’s criminal history and how it relates to the risks and responsibilities of the job. The employer’s hiring decision should accurately predict who will be a responsible, reliable and safe employee.

However, arrest records are treated differently. An employer cannot refuse to hire people simply because they have been arrested. The fact that a person was arrested is not proof they committed a crime. That said, there are situations where an employer can explore the person’s conduct leading to the arrest and ask them to explain the circumstances. The employer can then decide whether the conduct is a reason not to hire the person or to make another employment decision.

Employers should also be aware of other laws they may need to comply with. For example, when an employer runs background checks through a company in the business of compiling background information, the employer must comply with the Fair Credit Reporting Act. In addition, several states have enacted laws, commonly known as “Ban the Box” laws, that limit employers’ ability to seek and use information about job applicants’ criminal histories. These provisions generally prohibit employers from automatically disqualifying applicants based on their criminal background. Given the complexities, employers should work with local counsel to ensure their hiring processes comply with all applicable laws.

About: MAP Partner
 0
What gives with head protection? Why workers want to keep their hard hats and ditch safety helmets.
April 2025

Last August, I took my pickup to the dealership for a nagging check engine light. While it was being looked over, I chatted with the salesman I normally deal with, and he told me about the latest and greatest 2025 models. He told me how the twin turbo inl

Greg Brown
Featured
Read More
Government Affairs: Bringing North Carolina to Washington, D.C. and Hopefully Young People to Your Jobsites
April 2025

For you long time members of the Mason Contractors Association of America you likely remember our Annual Washington, D.C. Fly-In where MCAA members from around the country would come to Washington, D.C. meeting with Members of Congress from their home sta

Stephen Borg
Featured
Read More
Chairman's Message: While We Are Still Here
April 2025

I truly value my days working on construction sites during the summers of my high school and college days. Some moments in our youth are so clearly meaningful that we file them away in our subconscious to be recalled when life events require inspiration.

Dick Dentinger
Chairman’s Message
Read More
Contractor Tip of the Month: The Tough Calls That Define a Leader
April 2025

In construction, every project balances a delicate trio: coordination, precision, and timing. However, beyond blueprints and schedules, leadership demands something far greater—the ability to lead and make difficult decisions that shape the future of a co

Damian Lang
Featured
Read More