Compliance and the Critical Difference between Arrest and Conviction Records

Arrest and conviction don’t always go hand-in-hand. When it comes to making decisions about employment actions such as hiring, firing, promotion, transfers, and demotions, it is critical to understand the difference and to act accordingly to remain in compliance with the law.


Arrest vs. Conviction


An arrest does not automatically establish the act of criminal behavior. Therefore, an arrest alone is not job related nor is it consistent with business necessity, according to the guidelines set forth by the U.S. Department of Labor (DOL).

On the other hand, a conviction “will usually serve as sufficient evidence” that someone engaged in wrongdoing. However, relying on this conviction record alone may not be wise when making employment decisions.

In all cases, employers should check to ensure they don’t treat criminal history information differently for different applicants or employees.

Employer Best Practices

When it comes to background checks and ensuring compliance with company practices as well as state and federal law, best practices offer employers a  consistent methodology. Here are some best practices offered by the DOL when using criminal history in employment decisions related to employees and candidates for employment:

  • Don’t exclude applicants for employment based solely on their criminal record
  • Train managers, hiring professionals, and other appropriate employees in the fundamentals of employment discrimination
  • Develop an appropriate policy for screening applicants and employees for criminal conduct
  • Determine specific offenses that  may demonstrate unfitness for performing specific jobs
  • Limit inquiries about criminal records to those where exclusion is job related and consistent with business necessity

Ensuring your organization is in compliance with current laws related to background checks is vital to maintaining a safe and legal work environment. That’s when using an outside expert can help.


TruDiligence is a full-service background check and investigative firm that specializes in Fair Credit Reporting Act (FCRA) compliant employment screenings. For fast, accurate, and comprehensive background checks, investigative screening, and verification services, contact us today.

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