How is it legal to ask "have you ever been arrested"???

On employment forms, government forms, etc many of them ask "have you ever been arrested or convicted of....."

If you were arrested but not convicted, how is that any of anyone else's business? Presumably they ask about arrested OR convicted because if you were not convicted they still want to know about it. But given that if you were not convicted then the due process of law found you not guilty, then how can the mere fact you were arrested be held against you?

Lets say cop has an attitude and arrests person for disorderly conduct. Person goes to court, charges are dismissed. Person goes on with their life. 5 years later when applying for a visa it asks if you have ever been arrested - you must say yes?

It would appear the due process of law was followed and you were cleared. So how can one be expected to carry the burden or stigma with them for life given due process relieved them of any guilt (or even any charges)??? How is this legal/legit/fair????

 

Not sure about all States, but Florida is an "at will" employment state and I believe that is what makes it legal here.

 

You are correct. Most states are "at will" states. Since being arrested and felony convictions aren't protected classes under the EO Laws, employers have the right to ask this.

 

Not sure but it's very easy to verify this stuff these days so it doesn't make sense to lie. You could leave it blank and see what happens? Let us know what you find out?

 

Leaving the answer 'blank' pretty much guarantees that you'll be asked the question directly during an interview. So will unexplained gaps in employment, losing one's job involuntarily, etc. They're fishing for dirt on you. There are ways of answering these types of questions that dispel the idea that where there's smoke, there's fire......you have to craft your answer in a way that provides truth, but not the type of self-incriminating details that would indicate you have something to be ashamed of.

BTW, there is really nothing stopping a potential employer from asking any question they want to....even if it is 'illegal'. They pretty much know that they have the upper hand over the jobless masses.....

 

Ok, forget about employment.

What about government forms? And I am not talking about things like applying to be a state trooper or FBI agent, I am talking about things like travel visas, passport applications, firearm applications, etc, etc. Why are they allowed to ask? Due process has been served, and a conviction is a conviction and anything less is not a conviction.

What if one were denied employment or denied any other service/priviledge based on the fact they had been arrested? For example, if you were denied a government job, or denied a firearm permit, or denied a travel visa based on an arrest that did not lead to a conviction.

It seems bizarre to me that an allegation (which is what an arrest is) can be used to discriminate against people. It seems this would be a huge no-no especially for government/official things. Can arrests be expunged and if so, do you still have to answer that you were arrested or can you legally say "nope"???

Lest this provoke thoughts of nefarious things, the reason I ask is that a friend of mine is coming to visit. He was arrested a year ago because he was pickpocketed by a man/woman team. The woman pickpocketed him and ran, he tackled her and the man came over, turned into a wrestling match/fight on the ground. Cops were right there and arrested everyone. Some hours later he was released with no charges ever being filed (by choice of the prosecutor).

In addition, I was arrested many years ago for reckless driving for being caught going 92 in a 65. Cop wanted to make a point to a 17 year old kid and gave me the full treatment. When I went to court, the case was dismissed on the first appearance. But when I was applying for a firearm permit, it asked if I had ever been arrested. How can they legally use this as a basis for denying a permit given that an arrest is not proof of anything? I mean, a cop could arrest someone for assault and battery, knowing that they will lose their firearm permit - even if you never assaulted anyone and were just walking down the street with your kids. Granted thats extreme, but it makes the point.

So how can an arrest that never led to a plea, or a conviction, or probation, etc be used as the basis to deny something to someone (ok, outside of private entity/right to work stuff)???

 

I don't have an answer to the "big picture" here.

If I had an arrest in my past, and no conviction attached to that arrest, I would get a copy of the court record on the case, showing clearly that the arrest charges had been unconditionally dropped, including case number, date, court venue, judge's name, etc.,and I would take a copy of that document with me whenever I went to apply for a job, get a visa, apply for a firearms permit, etc., etc., and I would attach a copy of this document to my application (if the application required an answer to that question).

If you did this, and you were turned down on the grounds that you had an arrest on your record, you should have grounds to file a grievance of some kind.

 

If you get arrested and charges are dismissed you need to have the judge or the courts expunge your record. When you do this it is not considered an arrest and you do not need to claim it on any applications. The employer is looking for felony arrests and unless you are apppling for a bus driver they do not care about traffic violations. In my past life prior to retirement I was in a middle management position in a large corp. We had a new employee (6 months) that after doing a background search was found to have an arrest for B&E in his college days as a prank. He got a lawyer and the case was dismissed. He was told that his arreat was expunged from the court records so on his application he answered the question as NO. Unfortunately someone did not follow through and the record was still reflecting his arrest. Our HR people were asleep during the hiring process (claimed they had to many new hires going on and could not screen them fast enough) . When they found out he had a record I was notified and requested to discuss and understand the issue. I had told him if this was true that he would be dismissed for lieing on his application. He told me the story and I told him I would give him a week to straighten it out. He came back in 4 days with a letter from his attorney , the judge and the court system. He is still working for the company. Just an FYI

 

In the UK employers can also ask if you have ever been cautioned, both formally and informally. Of course informal cautions over here can be given by a police officer at their own discretion, with absolutely no evidence to back them up. It's all a bit Orwellian if you ask me.

 

Thats my point exactly.

I have never had a problem due to my previous deal, but I think it appears wrong that they can even use it as a basis for anything. An arrest is just an accusation of wrongdoing. If the charges are dismissed, its sort of like saying "wel you didnt do anything after all" and the person should suffer no consequences. If an arrest causes someone to lose anything (a job, a visa, anything) then it appears that person has been "convicted" without due process and should have some recourse. And if the fact that someone was arrested is not being used as a disqualifier for something, then they have no need to even ask about it.

 

ask a lawyer to expunge your record

 

they ask the same stuff here, more or less. even when ur applying for a job at Starbucks.

 

When you are pulled over for a traffic ticket during revenue collection, you are technically "under arrest" or "arrested". What more do they need to know?

 

If you are applying for a job at a large company who has their background check tools in order, they are going to find out anyways


SEARCH RESULTS FOR: 555-55-5555

STATE OF CALIFORNIA CORRECTIONAL
- Records do not exist -

LOS ANGELES COUNTY POLICE
PC 242 - ATM MACHINE..................2/14/88
Served...0
Warr......0
Status...0

UNITED STATES FEDERAL PENTRY. FAC.
- Records do not exist -

 

Is it legal? who cares! Is it legal to tell a cop "F you"? No, but I do it anyway. (it cost me a few grand to get out of that one)

 

WRONG !

Let me preface this with anything I say here is my opinion and not meant to constitute legal advice.

Having said that, I have been in management for 30+ years and have been to numerous corporate HR training sessions that have emphasized this (among other no-no's in the job interview process)

Here are a couple of examples.

http://www.kulzick.com/femplawq.htm

http://www.dfeh.ca.gov/Publications/DFEH%20161.pdf

Being an 'employment at will' state has nothing to do with asking illegal questions during the hiring process.

If I was ever given a form that asked if I had every been arrested or convicted and I only had an arrest, I would answer no.

 

Interesting.

So what would it be that makes it an illegal question? I know that you cannot discriminate based on age, sex, race, etc even in right-to-work states, but what specifically is illegal about asking? My beef with it is that it denies the person the due process of law. Sort of like asking "has anyone ever said you stole something" instead of "have you ever stolen something?". The state has created a justice system that starts with an arrest, then an arraignment, then a trial, then a conviction or a dismissal or an aquittal. For a private entity to pick-and-choose parts of that system (that people have little control over) and use it as a determinant to employment would seem to be unfair at least, and in my view *should* be illegal. If it actually *is* illegal I would love to know why, specifically.

Then again, if you answered "no" when the truth was yes, then they would have grounds to not hire you based on lying on the form. If you were truthful the stated reason could easily be "we found someone else - thanks anyway" and you'd probably never know why.

 

I did a little more research on this.

According to the Civil Rights Act of 1964, arrests cannot be used as a sole basis for denying employment. It states

"…since the use of arrest records as an absolute bar to employment has a disparate impact on
some protected groups, such records alone cannot be used to routinely exclude persons from
employment."

it goes on to state...

"arrests alone are not reliable evidence that a
person has actually committed a crime… to justify the use of arrest records, an additional
inquiry must be made. Even where the conduct alleged in the arrest record is related to the
job at issue, the employer must evaluate whether the arrest record reflects the applicant’s
conduct…"

It also states that "an additional inquiry" must have a high burden of proof upon the employer because the arrest alone cannot be used to make the determination. It concludes that "an employer is seldom able to justify the use of broad general questions regarding an employee’s or applicant’s arrests."

Case law makes it even more clear, stating that "have you ever been arrested?" is an unlawful question, and suggests it be phrased such as "Have you ever been convicted of a crime? If so, when, where and what was the disposition of the case?"

Furthermore, many states have laws preventing employers and government or business entities from asking about arrests. In my research, it is illegal to ask about arrests (that did not lead to a conviction or are not arrests which have charges pending) in many states like California, Massachusetts, New York and many others. Actually the only state I found out of 10 I looked up that allows employers to ask about arrests is Wisconsin, but they state that it is against the law to use such information as a basis for employment, and that employers asking such questions are exposing themselves to a lot of liability for a discrimination lawsuit.



So, the bottom line is that in most states, the employer CANNOT ask if you have ever been arrested - it is specifically illegal to ask that. In *some* states, they can make the case that its justified to ask (but there must be *substantial* need to ask) and they are not allowed to use an arrest as a sole determinant of whether you should be employed. It can only be used as a factor if an independent investigation is held and its determined that the applicants actions/behaviour would cause a problem in their job.

 

What do you need to know this for? Even though they may not be able to ask they will. So then what are you going to do?

 

Check my 2nd post - its just something I started to think about after a friend of mine was applying for a travel visa and was asked if he had ever been arrested (not convicted). I found it to be overly intrusive of a question, and recalled times when its asked about on job applications. Turns out its illegal to ask it.

As for "so what are you going to do?".... well, if you were applying for a job and they asked you to write your age, race, and list all physical handicaps, and you were a 60yo black man in a wheelchair, you may find the questions discriminatory - because they are. You could not fill them out and if it raised questions during the hiring process you would have a valid complaint for discrimination against the company. I dont agree that they will ask even though they shouldn't... I bet some companies are not aware of the legalities of it and IMO if someone asks you to do something illegal that you are uncomfortable with, you have every right to say NO without penalty or repercussions.

 

In high school I had an "issue" one night as I was too drunk to communication (speak words) to the cops outside a party. They arrested me instantly and made me the example in front of everyone. The drunk tank is quite pleasant let me tell you, nothing beats having to roll up your shirt for a pillow while laying on the ground. But afterwards, I was curious as to whether it would go on the record or not. It does I believe or goes away eventually but it isn't classified as an arrest, just that I was detained.

 

LEMME GET THIS STRAIGHT - you live in MA, the most liberal, Gun-hating state in the United States.....you have an arrest record (flimsy as it might be)....and you're SURPRISED that the liberal Gun-haters are using that against you to deny you a gun permit....right....

Well, now that Mit Romney has found Jesus and the NRA, you think things are going to change here at home??? Nope....I'm surprised the kooks on Beacon Hill haven't revoked your driver's license and your right to vote, too. You may need to be placed on a watch list, or something....remember, YOU voted for these idiots. Maybe if your gun permit got shuffled under a stack of new-Leftist social programs, it would get signed into law by accident and you'd be home free! Don't worry, MA will get annexed by the nation of Brazil before too long, you can file an appeal with Rio de Janeiro PD in a couple of months.....

 

Mike, if you were arrested at the age of 17, would that even show up on your record since you were a minor at the time?

 

I honestly dont know - I havent checked into it. Maybe it doesnt show? I have heard there are different levels of check. I.e. the check an employer can do is a lot different than the check that the CIA could do. It wasnt that it affected me, but rather a friend looking for a visa to travel here. I started to think about it and I recalled times I was asked about being arrested, and thought it may well affect me after all. Seems like a lot of places are asking when they shouldn't be!

 

LOL!

Actually I didnt vote for them

I'm right up on the border with NH. I am planning to build a new industrial building maybe next year and move my business just over the border (and coincide that with the home I am looking to buy there). Then I can start amassing a collection of cannons, rocket launchers and machine guns.

The city I live in is ultra Nazi about gun permits anyway. The police chief told me "we just dont give them out - to ANYONE except LEOs". "May issue" is taken to an extreme by this guy - and unfairly too. Luckily the city I own a business in is a lot more lenient and recognizes peoples rights.