Employment Law

questions & answers

Question: If one of our employees was arrested and he posted it on Facebook, what are our rights as his employer to ask?

Answer:  No Arizona statutes have been located that restrict an employer?s ability to obtain and/or use arrest records. However,
the Civil Rights Division?s guide to pre-employment inquiries states that asking an applicant about his or her arrest record is
an impermissible question unless there is a ?compelling? business reason directly related to the job sought. Arizona Guide to Pre-Employment Inquiries, Fair Employment Practices Manual (BNA), 453:1861.

The fact that an individual was arrested is not proof that he engaged in criminal conduct. Therefore, an individual's arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Several states' laws limit employers' use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. If you have questions about these kinds of laws, you should contact your state fair employment agency for more information.
http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm

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