Background checks provide employers with a complete picture of applicants for their jobs. They’re an essential tool, especially for companies in states where Ban the Box legislation means they can’t ask about a criminal record on the application.
Job applicants with previous criminal activity may worry about what will appear on a background check. It’s wrong to think that just convictions show; most background criminal checks reveal a timeline of activity even without any convictions.
It’s possible to avoid a criminal conviction with non-adjudication, but how much of this can a future employer see on a background check?
What is Non-Adjudication?
Non-adjudication is when an individual pleads guilty to a criminal charge, but the conviction is suspended because they agree to go on probation for a defined period.
Probation includes different programs connected to the offense, usually related to rehabilitation and victim impact.
Once probation is complete, the charge is dismissed, and that individual can have it expunged or deleted from the record, meaning there will be no record of the activity or subsequent arrest.
Are Applicants Obligated To Disclose Non-Adjudication?
An applicant who has non-adjudication technically isn’t holding a conviction, so they aren’t misleading an employer if they answer no to the question of previous criminal offenses on a job application.
However, if the question relates specifically to non-adjudication – it might say have you ever pleaded guilty or ‘no contest’ to a criminal charge – it is untruthful to answer in the negative.
Applicants should bear in mind that there may still be a record of arrest that comes up on a criminal background check, so if they answer no, an employer may still find out.
An applicant in an area with Ban the Box legislation cannot be asked on their application form. They might be better off disclosing this information as the employer is bound to find out on a criminal record check.
Will a Non-Adjudication Show Up on Background Check?
There will be no conviction data, but there could still be details surrounding an arrest on the record unless the facts are expunged.
Will a Deferred Adjudication Show Up on a Background Check?
A deferred adjudication is also called an adjournment in contemplation of dismissal or probation before judgment. It’s a plea deal that allows a defendant to plead either guilty or ‘no contest’ to a charge to avoid a formal criminal conviction.
In return for this, the defendant has to complete a diversion or probation program, which takes the form of rehabilitative treatment, community service, or something else the Court decides on.
A deferred adjudication shows up on a background check; employers can see the crime and the plea entered. Because of this, it’s usually better for job applicants to be upfront about a deferred adjudication to put them in a better position.
A deferred adjudication won’t appear on a background check if the program is completed and the details expunged from the record.
Is It Fair To Consider Deferred Adjudication Cases When Hiring?
An applicant’s actions and intentions are the primary consideration for the employer.
It’s reasonable for an employer to consider that an applicant engaged in the alleged conduct if there’s a deferred adjudication on their background check record, even without a conviction.
However, an employer must be careful not to use past criminal activity in an unduly prejudicial way to an applicant. The Equal Employment Opportunity Commission (EEOC) seeks to protect people against discrimination if they have a criminal past.
Final Thoughts
Because non-adjudication will appear on a criminal background check, employers can always find out what illegal activity an applicant has in the past. More importantly, honesty is always the best policy for applicants who should lead the debate.
ScoutLogic offers comprehensive candidate screening, including criminal background checks, so employers know they have the complete picture before they hire.
David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.
David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.
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