I was arrested for DV last month. DA's office has not decided whether to file any charge or not, and the arraignment has not been scheduled. I got an job offer and might start to work soon. However, my employer may ask me to do a background check. My questions are
(1) Will the background check show the arrest record?
(2) Can my employer refuse to hire me based on this arrest record?
Employment / Labor Attorney
Generally, and employer is not allowed to ask you about or to make an employment decision based upon an arrest, only a conviction. However, there are two big exceptions to that general rule. One is if you are making application for a job that is related to law enforcement, or national defense or security. For those jobs the employer can ask about and consider arrests. The other exception applies to you for sure. An employer is allowed to ask about, learn about and make employment decisions while considering arrests that have not yet resulted in a final disposition. Therefore the answer to your second question is an unequivocal yes.
As to your first question, while an arrest is harder to find and will likely not show in some standard, low effort background checks, they are not invisible and can be found many of the times. Furthermore, if your application asked, you needed to disclose the arrest. Keep in mind that once employed, the employer can terminate you on the spot if it learns of the pending matter as well.
Good luck to you.
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Employment / Labor Attorney
For most jobs, it is unlawful for an employer to refuse to employ an applicant based on an arrest without a conviction (there are exceptions, such as jobs that require security clearance, special licenses, etc.). However, this is a law without much backbone because a thorough background check may pick up on the fact you have been arrested and it is possible the employer will learn of it. It is very easy for an employer to send you a rejection letter saying they hired a more qualified candidate. Trying to prove you were really rejected because of the arrest is next to impossible.
Because of this, you are in a dilemma. You have no legal obligation to tell the prospective employer about the arrest. But what if you do not and they find out either now or later when you have to take time off to make a court appearance? The employer does not care you were not required to tell them about the arrest. They will only see that you deceived them. If the arrest does not lead to a conviction, they cannot terminate you for that reason. But you will be starting off the job on the wrong foot and there is never any guarantee of ongoing employment under our "at-will" law.
If you wish to take a chance and tell this employer the truth, they may be appreciative and your job could be secure. But they could also withdraw the offer. You may have a case, at that point, depending on the circumstances. There are risks either way. I cannot tell you what you should do, the decision must be yours. Good luck.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
Administrative Law Lawyer
The fact of an arrest that has not resulted in conviction is off-limits for use (or inquiry) by most employers. But the conduct underlying the arrest is not off-limits. There's a critical and meaningful distinction between the fact of your arrest and any information about DV conduct reported about you from any source other than an arrest record.
Arrests are not confidential and are sometimes reported in a "crime-log" or "police log" type column in local newspapers and on local interest community web-sites, so it is certainly possible that the information is discoverable by the employer. Companies of size and sophistication usually use professional information vendors to vet prospective employees by a broad search of all available public information (although the employer will not ordinarily spend the money for such information retrieval until they are close to a decision to make you an offer). So there is no certainty that the info will not surface.
If the info about the arrest comes to the employers attention, it is most likely NOT the fact of the arrest that will be of concern. The prospective employer's interest and questions to you will almost certainly pertain to the conduct that is alleged or reported to underlie the arrest, not the arrest itself or any pending legal process. This distinction between the fact of an arrest and the alleged conduct underlying the arrest is a critical one, but it is widely misunderstood by both consumers and even some lawyers. Sophisticated employers and the commercial vendors who provide them info understand this distinction perfectly.
Whether you can best serve yourself by a voluntary disclosure and discussion about questionable conduct by you that has come to the company's attention (or may soon come to its attention) is a determination that depends primarily on the nature of the alleged conduct, and secondarily on your ability to handle the subject constructively with candor and equanimity. The only certain advice that anyone without all the facts can offer is: Don't be untruthful or only partially truthful. That can get you rejected for consideration for employment, or fired even after hiring, at a dizzying speed.
The real issue for applicants for employment in your situation is not in how to handle any questions about the allegations of improper conduct that the prospective employer may raise. The real danger is that the employers who learn about allegations of unlawful or improper conduct about applicants for employment -- from whatever source, arrest-related or otherwise -- do not typically question the applicant about that info or challenge the applicant to explain or defend the conduct. Most often, the info about such allegations simply causes the prospective employer to quietly pass on that applicant without any explanation or statement by the employer of the reason. This is lawful action by the employer. The law does not require prospective employer to state a reason for passing on an applicant or hiring another candidate. For this reason, some who consider your situation will conclude that you have less to lose and more to gain by a disclosure and discussion of the conduct reported.
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