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Ask Legal-Kal Your Own Question
Legal-Kal
Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 554
Experience:  Attorney at Law Offices of Khaled Issa
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How quickly does an arrest show up in a background check and

Customer Question

How quickly does an arrest show up in a background check and Does a theft or shoplifting charge stop employers from hiring someone ?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Legal-Kal replied 1 year ago.

Good evening:

MY name is ***** ***** I would be happy to answer your legal question. Before we proceed, which type "employers" are you asking about? I ask this because every single employer is different and they have different internal standards about employing individuals with arrests.

Customer: replied 1 year ago.
Jewelry stores, sales positions, retail
Customer: replied 1 year ago.
how quickly does an arrest show up on a background check ?
Expert:  Legal-Kal replied 1 year ago.

Ok, we'll there is good news, and there is bad news. I'll begin with the bad.

1) How quickly does an arrest show up on a background?

An arrest can show up within 24 hours, depending on the type of search the employer conducts. There are a few places where an arrest record can/will appear, which includes the local clerk of court’s database. Also, an employer can perform their own criminal background check by checking the database to see if you have an open case and a recent arrest date. Employers can also view the booking records of the local jail. They can call the sheriff’s office, police department, probation office, or another law enforcement office directly to ask for information.

The good thing is arrests are generally not given much weight compared to convictions. This is because anyone can be arrested for anything and does not, under the law, prove that you committed the alleged offense.

Good news:

2) An arrest, alone, will generally not exclude you from employment

This goes to what I had mentioned before. The reason, again, is because most employers know that many people are arrested and evidence later shows that you are not "guilty" of the offense (for any number of reasons). That is why the overwhelming majority of job applications ask "If you have ever been CONVICTED of a criminal offense", not arrested.

Customer: replied 1 year ago.
I was on the phone with my mother who is 80, hard of hearing and has dementia. I was at a Khol's department store. After her 5th call in an hour I walked to the vestibule between inside and outside with my merchandise so I could talk to her in a loud voice without bothering everyone around. The alarm went off and I was taken by loss prevention and then the police came, told me that I was arrested and "yeah, yeah, nobody MEANS to take things...We have you on camera" Facts are correct but not the shoplifting part. I'm screwed ??
Expert:  Legal-Kal replied 1 year ago.

Hmm, that would be an interesting charge to sustain. I would like to inquire further into that and discuss the intent portion of the law. I don't know if you are necessarily "screwed." Of course, this depends on so many other factors which would require a lengthy discussion.

However, because that is technically a different question from the initial question you asked (regarding an arrest record showing up an the employment ramifications), you would have to accept this answer and ask me that question on a separate posting, per JA protocol.

Again, I would be happy to answer the actual charge you are facing. However, you would have to first click "accept" and leave feedback so I may receive credit for the response to your initial question first (unless you have more followup questions to your initial issue of arrest record and employer ramifications, which I would be more than happy to continue discussing).

Customer: replied 1 year ago.
The store then called my current employer and I was "let go". So my current question is how hard it is going to be get hired in the next couple of days. There is a jewelry store that has wanted me to work for them for a long time, but I am sure that they do background checks. So , I was checking the likelihood of them hiring me or does their insurance exclude me, or is it just a company policy/decision thing ?
Customer: replied 1 year ago.
I was also not taken to jail. The police said I was under arrest and that I would get a summons in the mail.
Expert:  Legal-Kal replied 1 year ago.

Every store is completely different. While their action to fire mainly based on 'just' an arrest is not the best course of conduct, private employers are allowed to set and carry out their own standards when it comes to hiring and letting employees go (as long as it does not run afoul of federal law, like race, religion or physical handicap reasons).

You also may tend to find more private employers in retail (especially a jewelry store) than in other industries who will tend to frown upon a retail theft arrest as opposed to other types of arrests. Unfortunately, it would not be possible to give you a percentage or likelihood of the jewelry store hiring you based on the arrest because, again, not every employer is the same.

May I ask if you know for certain that you were let go simply because of the arrest or are you just speculating? I ask because the overwhelming majority of employers, especially current employers, generally wait or look for a conviction (absent a few professional jobs like teacher, police officer, doctor, etc.)

Customer: replied 1 year ago.
My current employer ( a talent agency that I did promotional and training work for)called me, said hello, Khol's called and told me you were arrested for shoplifting is this true ? I said yes and was going to explain. She immediately told me I was no longer needed...click.. ..... If I apply at the jewelry store, I was going to tell them about the arrest first. I feel like I have nothing to hide so I was going to tell them. What do you think ?
Expert:  Legal-Kal replied 1 year ago.

In situations like this, it would be very important to read the job application closely. Most jobs only for convictions to be listed. They then do a background search and if something (other than a conviction) comes up, they will then ask you about it.

I am sorry to hear about your "current" employer. It is unfortunate that they gave such a great weight to an arrest alone. They must have felt that there was a reasonable relationship between your position and the arrest.

In your case, it may be more beneficial to disclose the arrest to show you have nothing to hide. I must add that if you plan on applying to a jewelry store, the arrest being for retail theft will not look great (not as bad as a conviction for retail theft, but still not great).

Would it be possible to have a different employment while the retail theft charge comes to a resolution? If there is a finding of not guilty or a dismissal, you will be eligible to expunge or seal the arrest (which would make it as if it never happened). If expunged, the records will be physically destroyed and any arrest record will not come up during a background search.

Customer: replied 1 year ago.
I was just surprised that the store called my employer. I was just going to plead no contest to the charges with the explanation of what happened, however now, I will speak with a lawyer. I cannot stop my life and I guess I will just go forward and see who (if anyone) will now hire me. Thank you
Expert:  Legal-Kal replied 1 year ago.

I wouldn't necessarily handle this matter without an attorney. An attorney may be able to get a not guilty verdict based on the circumstances of your case. (For instance, if you were in the vestibule for a few minutes, or even just one minute, an attorney may be able to argue that you did not intend to commit the theft and you just simply forgot about the item while you were on the phone). This is because the State will have to prove that you intended to deprive Kohl's of the property or the value of the property.

If a court finds you not guilty of the offense, you can file a Petition to Expunge the arrest an criminal case. If your petition is granted, the records can be permanently destroyed and your background will not show any arrest. If you plead no contest, that has the same effect as a guilty plea and a permanent record. I highly advise that you retain an employee to fight the retail theft charges.

Expert:  Legal-Kal replied 1 year ago.

Good evening:

It has been a few days since the last posting and I am wondering if you have any follow up questions I can answer? If not, and you are happy with my assistance, please remember to click "ACCEPT" and leave feedback as that is the only way I can receive credit for my response.

"***Please remember, as an attorney, I can only answer questions truthfully and with candor to better assist you. Oftentimes, the state of the law may not lead to a favorable outcome. However, as an attorney, I cannot sugarcoat the issues and can only advise you to the extent of applicable laws. In those cases, I am merely the messenger and please do not hold that against me.***

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