Criminal background checks contain much more nuance than most employers expect when they first begin creating their vetting processes. Most people think of a background check in a binary way: they either show a clean record or a checkered past that involves one or more criminal convictions. While it is true that arrests alone do not usually appear in background reports, that does not mean all criminal records exclude non-conviction information. As a result, employers need to understand the other data they might see—and what it means for the hiring process.
Some criminal cases end in a “dismissal,” more commonly known as a dismissed charge. Do dismissed charges appear on criminal background checks? The answer to this question is of interest to employers and prospective applicants who want to understand what to expect during the interview process.
In short, most background checks will report dismissed charges on a criminal background check for employment despite the fact that they didn’t lead to a conviction.
Understanding why this is starts with understanding what a dismissal means in the first place. Here’s a quick breakdown of what employers need to know.
Not all arrests lead to convictions. That is why many states prohibit employers from considering arrest records. Doing so can be unfairly prejudicial and puts arrests on the same level of severity as a conviction. The EEOC and others have repeatedly cautioned employers that dismissing applicants on the basis of arrests alone is discriminatory behavior that could lead to legal action.
What happens when an arrest occurs and then the courts choose to “dismiss” the indictments? A “dismissed” charge means that the individual was arrested and perhaps had a court date set—or even a trial in progress—but the judge or prosecution declined to continue the case. In other words, the individual likely underwent an arraignment or the formal process of charging somebody with a crime. For one reason or another, however, the case did not proceed to a conviction or a “not guilty” verdict.
Your background report may only show that a charge was dismissed, or it may speak to the specific type of dismissal that occurred. The latter situation is especially likely in cases where you’ve requested county-level court record data directly. However, not all cases are the same. There are different types to know, which may factor into how you make decisions.
Among the various types of criminal records and dismissals, you may encounter:
In the process of some dismissals, a judge may also enter an order to seal the records. However, in many states, applicants will need to go through the typical expungement or sealing process, usually via petition or court order. Not all dismissals may be eligible for sealing.
Because dismissed charges are still formal criminal indictments, they will appear on most background checks across the United States except wherever a state has specifically legislated against such inclusions. Similarly, since most states require applicants to make a formal petition to the courts to have these dismissals removed, the process may be too demanding for some individuals.
Some candidates may believe that their dismissed charge won’t appear on a background check. Others may think the courts automatically sealed or expunged such information, as happens in a few states. However, most of these charges will likely appear.
Broadly speaking, yes. A dismissed charge is different than an arrest record under the law since the prosecution usually begins a case. Some even go to trial. Therefore, the law does not make a clear distinction between a true criminal record and a dismissed one—even if the latter never led to a conviction.
However, employers should exercise caution when making such decisions—you may want to learn more from an applicant first. With that said, some dismissed charges could prove so serious that their presence creates insurmountable concerns for employers. A dismissed murder charge, for example, will raise eyebrows at any job.
Not all dismissed charges that appear during screening should be there. Some may have been expunged or sealed in the time since the dismissal, and the individual applied to work in your business. This scenario is where following the Fair Credit Reporting Act becomes vital.
Per the FCRA, you must provide a “pre-adverse action notice” to candidates when their background report changes your hiring decision. This step includes making a decision based on a dismissed charge. You must provide the applicant a copy of their report and wait for some time, typically five business days, for a response.
Some candidates may respond with evidence showing why their charges were dismissed or demonstrating that those charges are indeed sealed. You cannot consider sealed or expunged records, even if they appeared on a background check. If you don’t follow this process or ignore a candidate’s evidence, you could face civil fines and lengthy discrimination lawsuits.
If your candidate has a dismissed charge, you may wish to request court records to understand more. You could also discuss the matter with your applicant. In some cases, the dismissal may be for a crime at such a low level—say, a traffic misdemeanor—that you choose to move ahead with the process regardless.
Whatever your choice, be consistent. Using a criminal background check for employment is a powerful tool, but it comes with regulatory risks and concerns. Consult the law in your local area to learn more about your rights and responsibilities.
Using vetting tools effectively requires not just a compliant process and the right professional support but also an understanding of the different types of criminal records. Dismissed charges can and do appear on background checks, and it’s essential to dig into the details to understand how they should impact your decision-making process. Remember: a dismissal doesn’t imply guilt or responsibility, but it does not necessarily mean a candidate was entirely innocent.
A process that examines candidate histories carefully and leaves the door open to a discussion is more effective. Following adverse action guidelines also ensures that you do not inadvertently violate the law by failing to provide candidates with a chance to provide evidence of expungement or other important facts. As you examine the results of criminal background checks, keep these things in mind to ensure you both protect your business and give candidates a fair chance.
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments
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