Posted: 10/08/12

Will an arrest show up in a background check?

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In this country we are innocent until proven guilty – but, can an employer use an arrest record against you?  A reader has that same question:

I was arrested for DUI, and my lawyer ultimately got the charges dropped. I am looking for a new job now, I’m wondering, will a background check show a DUI arrest that was dropped? – Mike F. Virginia

The short answer is that YES an arrest record will show up on your background check report in most states.  There are a few states that it won’t show up in, but most states will allow it (Virginia background check laws for example don’t allow ANY arrest information to be used, and employers can’t even ask you about it!).

Do you want to see if your arrest will show up on a background check?  Find out for just $19.95.

The Federal law (which only a few states supercede) says that arrests can be reviewed as part of your record for 7 years but, the EEOC has recently gotten involved and put out warning that it can be discriminatory to look at arrests that did not result in conviction.  This EEOC warning is a big red flag to employers saying that looking at arrests is a bad idea.

When it comes to arrests, the laws of the states are quite different, and in some states, there aren’t specific laws against reviewing arrest records, but, guidelines by the ‘powers that be’ against doing do so. The State of Michigan, for example says no, arrests that didn’t result in conviction can’t be used against you and can’t be looked at. In Texas and California Background Check laws, they can look at the arrest records going back 7 years.

States where they can’t look at arrests – or are advised against it.

California
New York
Pennsylvania
Ohio
Michigan
Virginia
Montana
Hawaii
Alaska
North Dakota
Rhode Island
Delaware
Louisiana
Colorado
West Virginia
Massachusetts
New Hampshire
Connecticut
Minnesota

In general, if your state is not on this list, you should still take a closer look at the state laws.

The other variable in the equation is what type of job you are applying for. If you are applying for a job in law enforcement, or for a job with kids or a vulnerable population, the rules may be stricter – even if there is a state law that prevents arrests being used for other jobs.

Finally, the big question is, so they find it, can they legally use that against you? Here’s the deal. . . it is getting harder for them to use criminal background information against you. The employer has to show that the background check information was important to the job, and it would be a difficult case for an employer to make when you weren’t even convicted. All of this makes it rather unlikely (but not impossible) that an arrest will show up and prevent you form getting a job.

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