States Prohibiting Consideration of Arrest History

Executive Summary

Seventeen states currently discourage or prohibit employers from investigating either directly or indirectly an applicant or employee’s history of arrests. In these states in particular, employers should only concern themselves with actual criminal convictions. Arrests that do not lead to conviction should be excluded from the employment decision process.

Arizona 

Although the state does not expressly prohibit inquiries into an applicant’s arrest history, the Arizona Attorney General appears to look with disfavor on such inquiries in light of the state’s Civil Rights Act. A.R.S. § 41-1463; see also, Guide to Pre-Employment Inquiries Under the Arizona Civil Rights Act.

California

Inquiring into an arrest record not resulting in a conviction is forbidden. Cal. Lab. Code § 432.7(a).

Hawaii 

It is an unlawful discriminatory practice for any employer to refuse to hire an applicant because of the existence of an arrest record. See, H.R.S. § 378-2.

Illinois

It is a civil rights violation for any employer to inquire into, or use the fact of, an arrest to disqualify a person for employment; however, nothing prohibits an employer from obtaining or using other information which indicates that a person actually engaged in the conduct for which he or she was arrested. See, 775 Ill. Comp. Stat. Ann. 5/2-103.

Kansas

The Kansas Human Rights Commission believes inquiring into a person’s history of arrests can be evidence of unlawful discriminatory activity in violation of the Kansas Act Against Discrimination. See K.S.A. § 44-1009; see also www.khrc.net.

Massachusetts

An employer cannot inquire into arrests which did not result in convictions. Further, an applicant cannot be punished for refusing to provide arrest history information. Also, if an employer conducts more than five background checks a year they must maintain a written criminal offender information policy. See ALM GL ch. 151B, § 4(9)(i); ALM GL ch. 6 § 171A.

Michigan

An employer must not request, make, or maintain a record of information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result. This section does not apply to information relative to a felony charge before conviction or dismissal. Also, a person who withholds misdemeanor arrest information when asked is not guilty of perjury or false statement. See MCLS § 37.2205a § 205a.

Missouri

Missouri’s Human Rights Act prohibits discrimination against certain protected groups. Missouri’s Department of Labor warns that inquiring into, and acting upon, applicants’ arrest history could have a discriminatory impact members of protected groups. See Mo. Ann. Stat. § 213.055; http://labor.mo.gov/mohumanrights.

Montana

Inquiries regarding criminal arrest records are presumed to be evidence of intent to discriminate unlawfully and should therefore not be made. See Mont. Admin. Rule 24.9.1406(2)(h).

Nevada 

The state’s Equal Rights Commission interprets Nevada’s Equal Opportunities for Employment Act to prohibit inquiring about an applicant’s arrest history. See, Nev. Rev. Stat. Ann. § 613.330; see also, www.detr.state.nv.us/nerc_pages/premployment_guide.htm.

New York 

It is an unlawful discriminatory practice, unless specifically required or permitted by statute, for any employer to inquire about, or to act upon adversely upon, any arrest or criminal accusation made against an individual if it did not result in a conviction. However, employers can ask about an arrest IF a criminal accusation is currently pending. See, N.Y. Exec. Law § 296(16).

North Dakota

North Dakota’s Human Rights Act prohibits unlawful discrimination, and the state’s Department of Labor and Human Rights discourages inquiring about arrest history. See, N.D. Cent. Code § 14-02.4-03; see also, http://www.nd.gov/labor.

Pennsylvania 

Pennsylvania permits consideration of felony and misdemeanor convictions in the employment context only if the conviction relates the applicant’s suitability for employment in the position at issue. By implication, this statute forbids what is not permitted; i.e., an employer cannot inquire about arrests not leading to conviction. See 18 Pa. C.S. § 9125.

Rhode Island

The state’s Fair Employment Practices statute forbids asking an applicant if they have ever been arrested. See, R.I. Gen. Laws § 28-5-7(7).

South Dakota 

The state’s Division of Labor Relations questions the practice of inquiring into arrests not leading to conviction, considering such questions suspect under the South Dakota Human Relations Act if the arrest is not substantially related to employment. See S.D. Codified Laws § 20-13-10; http://dlr.sd.gov/humanrights/empdiscrimination.aspx.

Washington

The state recognizes the disparate impact that arrest inquiries may have on some categories of people. However, arrest records still may be inquired into as long as the inquiry regarding the arrest includes whether charges are still pending, were dismissed, or led to a conviction of a crime that would adversely affect job performance, and whether the arrest occurred in the last 10 years. Any data gathered on arrests may only be used when making the initial employment decision; further use of the record while the applicant is employed is forbidden. See WA ADC § 162-12-140; see also ARCW § 43.43.834 (5); ARCW § 43.43.815.

Wisconsin

It is employment discrimination to request arrest records unless the charge is pending and relates to the job for which the applicant is applying. See Wis. Stat. § 111.321. Exceptions to this are found in Wis. Stat. § 111.335.

This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2021 © Global HR Research. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of GHRR.