Can an employer legally inquire about previous arrests (not convictions)?

Factual Questions
1

I’m looking for a part-time job, and there’s a liquor store nearby that’s hiring. I picked up an application, and along with the routine questions about convictions and guilty pleas, there’s this one:

Have you ever been arrested for any act of violence?

Is this legal? Perhaps I’m naive, but I assumed that simple arrests without conviction couldn’t be held against you. Innocent until proven guilty and all that.

The application asks that if any of the answers are yes, to give complete details with dates, names of parties involved, facts upon which the claim was based and judgement rendered. It does not have the standard disclaimer that an affirmative answer will not necessarily bar one from employment.

My own problem here is that, yes, I have been arrested for an act of violence. Without going into detail, I was arrested for simple battery. The arresting officer explained that I’d go before the judge in the morning, would be offered the opportunity to plead, and if I pled guilty or no contest I’d be sentenced to time served. Well, when I went before the judge in the morning, after explaining my side of the story without incriminating myself, the judge addressed the prosecutor and said “You said you want to further investigate this claim before deciding whether or not to press charges, right?” and the prosecutor agreed. They released me on my own recognizance, and no charges were ever filed.

I always though that, legally, it was the same as if I had been tried and acquitted. There was not enough evidence to even go to trial, and even though most people are simply given the opportunity to plead, it seems as though the prosecutor had already reviewed the case and decided not to pursue it. I know that there are some people who might be prejudiced upon hearing of my one and only arrest, but I thought that employers would not be allowed to ask such questions. Convictions I understand, but arrests? Now I don’t even know how to respond, and I certainly don’t want to include things like the names of other parties present.

2

Yes, they can ask. It creates some legal risk to them in terms of how they use the information, but asking is not prohibited.

Here is a link.

http://searchinfo.com/resources/arrestwp.pdf

3

Note that the resource at the other end of the link is pertaining to federal EEOC guidelines. The law varies from state to state. In Wisconsin for instance, an employer may not ask a potential employee about his or her arrest record and may not discharge an existing employee because of a pending criminal charge. The employer is also prohibited from refusing to hire an employee because of convictions, unless the conviction is for an offense substantially related to the employment. A bank can refuse to hire a convicted thief, for example.

4

Employers are not really barred from asking anything, what they are barred from is discriminating against various groups, so when they ask questions about age, race etc. they leave themselves open to claims if the applicant is not hired.

My own experience is similar except i had a not-so-kind-hearted judge who simply said $300 or 30 days despite the fact that the police officer lied. I paid like a little baby and left the city and state forever. Later applying for a job which did extensive background checks i found that there wasn’t even any record of the case. While my guess is that the disposition of your case was not an acquittal but a dismissal without prejudice allowing the prosecutor to reopen the case within the proper period of time if additional evidence is acquired, in actuality it is in the round file with no easy way to discover its existence.

5

As **Otto ** rightly pointed out, some states do prohibit even asking the question. So check the state law info at the back.