Q: A background check we were running on a potential hire came back with a recent arrest, but it doesn't look like they've been to court yet. Can an employer make hiring decisions based on arrests as opposed to convictions?
A: We asked Carlos Lacambra with A-check America for his expert assistance with answering this question. Here's what he had to say. Under the federal Fair Credit Reporting Act (FCRA) an employer is allowed to see records of arrest. State law varies with respect to what an employer is allowed to see and do, so you should check to see which specific rules and regulations apply to you. However, as a general rule of thumb, under state law you should not make a hiring decision based on records of arrest. As a rule, A-Check will not provide our clients records of arrest that did not result in a conviction. If the record of arrest is current, meaning that the person is still going to court on the arrest, then we will report the arrest and its current status.
Another situation that may appear is a "differed adjudication" and also called "a diversion program". This is when the judge with-holds a verdict and allows the person to stay out of jail if he/she agrees to the court rules, such as stay clean, no arrests, no drinking, etc... If the person has completed a differed adjudication and complied with the judges rules then it is treated as an arrest and the employer is not allowed to use this information to make a hiring decision and so we do not report this. Again, this varies by state. For instance, in California an employer is not allowed to ask the applicant if he/she has completed a differed adjudication program. California treats this as a second chance and so more or less seals this record from the employer.