Wait Before You Deny Someone Employment based on PENDING Charges
A recent lawsuit involving Target has sparked renewed discussion around how employers use criminal background checks when making hiring decisions. According to reports, the lawsuit claims an applicant’s employment offer was rescinded after a background check revealed pending criminal charges tied to an arrest record.
The case highlights the difference between arrests and convictions.
An arrest means that a person was detained by law enforcement on suspicion of a crime. It does not mean the individual was found guilty or even formally charged. Many arrests never result in charges or convictions because prosecutors may decide not to pursue the case, the evidence may be insufficient, or the charges may later be dismissed.
Because an arrest alone does not establish guilt, several states restrict how employers can use arrest records in employment decisions. In Illinois, for example, the Illinois Human Rights Act generally prohibits employers from denying employment solely because someone has been arrested. This distinction is one reason employers must carefully structure the information they report to employers.
A criminal charge is different from an arrest because it means a prosecutor has formally accused someone of committing a crime and the case is moving through the court system. At this stage however, the individual is still presumed innocent until proven guilty. Many employment background checks may show pending criminal cases depending on jurisdiction and reporting rules.
Employers must evaluate this information carefully and ensure they follow proper compliance procedures when considering a candidate who has a pending case.
A conviction occurs when a person pleads guilty or is found guilty by a judge or jury in court. Convictions are the most common type of criminal record used in employment background checks because they represent a final legal outcome. Even then, employers are often required to evaluate whether the conviction is relevant to the job being performed.
FCRA guidelines encourage or require employers to conduct an individualized assessment that considers factors such as the nature of the offense, how much time has passed, and whether the offense is related to the responsibilities of the role.
For employers, understanding these legal distinctions is essential to avoiding compliance risks. Misusing arrest information or failing to follow proper screening procedures can expose companies to civil rights complaints and legal liability.
The Target case illustrates how employment decisions based on arrests can devolve into legal disputes when state laws restrict how that information may be used.
Working with a compliant screening provider can help organizations navigate these complexities. At Sure Check Background Screening, employers can access comprehensive screening services and guidance from our in house compliance officer with 25 years of HR experience.
Employers can learn more about the background screening process by visiting https://surecheckbackground.com.