Did you know that the cost of hiring a single employee is $4,425, as per the Society for Human Resource Management? And that one in three Americans has a criminal record that will show up during an employment background check?
While conducting criminal background checks are a critical component for many companies, they are not as easy as it once was. In an age of increased litigation and legislation, information overload, and the sources of this information, many employers struggle with its vocabulary.
What is disposition vs. sentence or convicted vs. non-convicted? What to consider while making a hiring decision?
Adding to this struggle, the laws that govern these background checks exist in an often surprising state of flux. Hence, in the context of criminal background checks, we must talk about:
- Factors companies should consider
- Their awareness of key terms
- Their response to any adverse findings
Let’s begin with the vocabulary.
Disposition vs. Sentence
What is a disposition? And what is sentencing?
Disposition is the outcome of a misdemeanor that leads to a person’s arrest or prosecution. In contrast, sentencing is the punishment for a person who is found guilty or pleads guilty. Hence, any criminal disposition may lead to sentencing, but the reverse doesn’t apply.
Let us first understand the probable outcomes of a disposition on background check, other than the one which leads to sentencing.
- Acquitted: A person found not guilty by a court of law in a criminal trial.
- Dismissed: The charge against a person doesn’t go forward as either the court or prosecutor has decided to terminate the case.
- Charges dropped: When the prosecutor declines to pursue the case.
- Sealed: When the court has restricted public access to all or some of the record’s content.
- Expunged: It refers to the deletion of non-conviction information (such as arrest data).
- Pending: It indicates the case is still under investigation or prosecution.
- Deferred Prosecution: When the court delays prosecution pending the successful completion of a probation program
A person is known to be ‘convicted’ if they have pleaded or been found guilty by a court of law. A conviction will lead to sentencing; here’s the related vocabulary that you must know.
- Determinate Sentence refers to a fixed sentence period of 10 years.
- General Sentence is a combined punishment for all offenses that a person commits.
- In Indeterminate Sentence, the duration of confinement can be anywhere between 10 to 20 years.
- Intermittent Sentence contains periods of freedom wherein the defendant can attend office/school during the day.
- Suspended Sentence refers to the postponement of punishment pending the successful completion of a probation period and/or a treatment program.
How Can an Employer Conduct a Criminal Background Check?
Firstly, the employer must understand the basis of a criminal background check. This screening depends on a variety of factors, such as
- The company’s parent industry
- The job role
- Their hiring goals
- Applicable laws and regulations
Once these are aligned, an employer must explore ways in which to obtain the required information. The most common sources:
- State court records
- Nationwide private database searches for criminal records
- Federal court records
- County court records
- Sex offender registries
Rules of fetching these databases differ from state to state, a company might need to submit a warrant and apt documentation to obtain the records. Hence, having a trusted partner to assist during this process will be more efficient in streamlining the process.
What Must an Employer Expect to Receive in the Criminal Records?
When fetching criminal records of a potential or current employee, an employer can see the following types of information:
- Date and type of offense
- The severity of the offense
- Disposition and its date
- Details of Sentence
Under the Fair Credit Reporting Act (FCRA), a non-conviction in a criminal record appears on a background check for up to seven years. But the outcome of interaction with the court is vital to understand for an employer. In case of conviction, you can access information age unless restricted by state or local statute.
What are the Governing Laws on Employers’ Use of these Criminal Records?
With the enactment of the ‘Ban the Box’ legislation in a few states, companies cannot ask about a job applicant’s criminal history at the initial stage of the job application. Moreover, depending on the specific law and jurisdiction, employers will not be permitted to conduct a job applicant’s criminal background check until they accept a contingent job offer.
And even when an employer runs the background check, they must note that discovering any unfavorable information would still confine them. Thus, they can only leverage it limitedly as the basis for a hiring decision. Here is what the regulations say:
- Suppose the criminal information you are analyzing for an applicant is for an arrest that did not ultimately result in a conviction. In that case, you may not necessarily be able to consider it.
- The Equal Employment Opportunity Commission (EEOC) restricts you from using any criminal history that you discover on a prejudicial ground.
It is always advisable to partner with a committed, well-versed, and capable vendor despite this information overload. The vendor can always assure you of a full-proof process of accessing, analyzing, or applying the information in a criminal background check.