Tue, September 27th, 2011 - 4:02 am - By Gordon Basichis
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There is a lot of confusion about criminal arrests and how they pertain to background checks and how they may negatively impact a job applicant’s employment prospects. A recent article in the Atlanta Journal-Constitution, written by Andria Simmons further highlighted the confusion and,at times, the injustice or discriminatory practices involved with arrests.
In here article, Simmons writes…”The Georgia Crime Information Center, the database for criminal records maintained by the Georgia Bureau of Investigation, adds about half a million arrest records every year, and it maintains a total of 3.3 million criminal records dating to 1972…..A criminal record check will pull up misdemeanor convictions, felony arrests and felony convictions. Many people are surprised to learn that prior felony arrests show up even if the arrest did not result in a conviction….. charges were dismissed or never prosecuted, or if a person was found not guilty at trial, individuals must apply to have their record expunged. The application costs $50 and requires a prosecutor’s approval. The process can take months.”
Of course, Simmons is referring to Georgia, which is appropriate for the Georgia based Atlanta Journal-Constitution. And the fingerprint processing in the Georgia Crime Information Center will reveal arrests. Same is true for the FBI Criminal Database or NCIC. However, most employers conduct state or county criminal searches. As such there are no arrest records unless the arrested party was further remanded to county court for arraignment and hearing. Otherwise, the arrest records stay with the police department and typically do not appear in county courts.
In some states you are not supposed to consider either arrest records, expunged records, or cases where the charges were dismissed. As to the age of a criminal record that an employer may consider, that varies from state to state. Some states will also prohibit the use of misdemeanor convictions unless the crime is somehow related to the job. Some states limit the use of first offense criminal records.
While employers can be a little more judicious as to how they consider criminal records, this is, after all, an imperfect world. Was it not the case, then there would not be convicted felons to begin with. There are bad examples of over emphasis on ancient criminal convictions, and then there are the employers who are far more analytical in considering older criminal records. Emphasis lately seems to be on those employers with blanket policies against hiring convicted felons.
But then as Simmons suggests in her article, employer want to insulate themselves from costly liability issues should a convicted felon act out in the work place. Bad enough an employee with no offense acts out and resorts to violence or other misbehavior. But when a convicted felon acts out, the first question, is why did they hire him? Why wasn’t he checked out? Where were the background checks on his criminal history?
Also in a tough economy and a highly competitive job market, an employer has pretty much its pick of candidates. Why would they bother with employment candidates with notably blemished records? But then someone who was charged with a crime and had the case dismissed, legally, is as innocent and as unblemished as the candidate with no charges against him. That is the reality. But sometimes reality doesn’t work as it should.
Unless a person was arrested and convicted of a crime, I really don’t see how arrests should be considered as an obstacle against employment. I find it difficult to understand why employers can’t overlook dismissed cases, especially when the crime itself is relatively minor or non-violent. But life is what it is and some have stricter hiring policies than others. I think the more you try to regulate the situation and impose laws against certain hiring practices, the more resistance you will find.
Perhaps educating employers is the best way to go. Have classes highlighting the danger zones and showing as well where ancient prison convictions have little relevance, especially when the job applicant is a productive person with the necessary skill sets. Tough call, I realize. But it’s time we made it.