An arrest is not the same thing as guilt. That's the whole idea behind this rule, and it's worth saying plainly before we go any further. Whether you're allowed to ask a candidate about an arrest that never led to a conviction depends on your state. But under federal law, using an arrest by itself to turn someone down is already risky, no matter where you're hiring.
Let's slow down and go through why.
There's no single federal law that bans the question outright. But the Equal Employment Opportunity Commission, the federal agency that enforces this area, has said clearly that an arrest record alone is weak evidence. An arrest just means a process started. It doesn't mean anything happened.
Some states go further than federal law. About a dozen of them restrict employers from even asking about arrests that didn't lead to a conviction. I'll get to that. But first, the reasoning matters more than the list, because the reasoning is what stays true even as state laws change.
Here's the line I want you to remember through this whole article. Arrests are an accusation. Convictions are, in most cases, an outcome. Build your screening process around that difference.
The EEOC's guidance on this goes back to 2012, and it's still the rule today. It says an arrest doesn't prove criminal conduct happened. It only proves someone was arrested. A conviction is different. It followed a legal process, so it's treated as real evidence.
Here's why this matters beyond fairness. Arrest rates aren't spread evenly across every group of people. So a policy that looks neutral, like "we don't hire anyone with an arrest record," can end up affecting one group of candidates a lot more than another. That's called disparate impact. It doesn't matter if you meant to discriminate. What matters is whether the policy actually does, in effect.
So to say that again in plain terms: a rule can be perfectly fair on paper and still be against the law once you see who it actually screens out.
Don't treat an arrest as an automatic no. If it's relevant, look at the actual conduct behind it, not the arrest itself.
Before you make any decision based on a record, do what's called an individualized assessment. That means looking at three things: how serious the offense was, how long ago it happened, and how closely it relates to the job you're filling. Courts have used this same three-part test for decades.
Most careful employers skip asking about arrests on the application entirely. If they ask about convictions, they say clearly that a conviction won't automatically rule someone out. That one sentence does a lot of protective work.
And write your reasoning down. If you ever have to explain a decision, "we assessed it against the job duties" holds up. "We saw an arrest and passed" does not.
I'm going to be careful here on purpose. Laws like this change often, and they vary a lot by state, sometimes even by city. Several states, often named alongside California, New York, Illinois, and a handful of others, restrict employers from asking about arrests that didn't lead to a conviction. Some states ban the question outright. Others allow the question but won't let you use a bare arrest to turn someone down.
I won't hand you a list here and tell you it's final. State law changes year to year, and getting this wrong is expensive. Check your specific state's current law, or ask a lawyer, before you write your application or interview questions. That's not me dodging the question. That's me telling you the truth about how fast this area moves.
One more thing worth knowing. This is a different rule from "ban the box" laws, which delay when you can ask about criminal history at all in the hiring process. You can follow ban-the-box rules perfectly and still break a separate state rule about arrest records specifically. They're not the same thing, even though people mix them up constantly.
These are two separate questions, and employers mix them up more than you'd think. One is what you're allowed to ask a candidate directly. The other is what a background check company is allowed to put on the report it sells you.
Under federal law, non-conviction arrest records generally can't be reported past seven years, with an exception for higher-paying roles. Some states restrict this even further. A few don't allow non-conviction arrests on a report at all, no matter how old they are.
So here's something that might ease your mind a little. Even in a state where you're technically allowed to ask, your screening report may already leave old, non-conviction arrests off entirely. A good screening partner is already doing part of this filtering for you.
There are real cases where this matters. A pending charge for something directly tied to the job, say, an embezzlement charge for a role handling company money, is worth a conversation. Not an automatic rejection. A conversation.
Ask about the conduct. Let the candidate explain. If the case hasn't been resolved yet, consider whether you can wait for it to resolve before deciding. Some jobs also run under their own separate rules entirely, things like banking, healthcare, or childcare, where a different licensing system applies. Those rules aren't the ones we're talking about here, and they need their own separate check.
Keep arrest questions off your application. That's the simplest, safest default, no matter what state you're in.
Write down a short individualized-assessment step for anytime an arrest or pending charge shows up on a report. Make sure it gets applied the exact same way every single time. Applying even a good policy inconsistently creates its own kind of legal risk, separate from everything else in this article.
And check your state's current rule before you finalize anything. I know I've said that twice now. I'm saying it a third time because it's the part people skip, and it's the part that actually protects you.