Employers conduct pre-employment background checks to protect workplace safety and their business reputations.
Criminal background checks are a common component of the employment background screening process and can reveal if an applicant has a disqualifying criminal conviction.
Are you wondering if background checks show pending charges? If so, we’ve got the answer for you.
At iprospectcheck, we have extensive experience conducting comprehensive employment background checks for companies across the U.S.
Here’s what you should know about pending charges and employment background checks.
What is a Pending Charge?
A pending charge means that the person who has been arrested for an alleged crime is still having their case reviewed by the prosecutor.
Prosecutors are responsible for deciding the charges a person might face and do not always have to follow through with the charges referred by the police.
Some of the reasons why a charge might be pending include:
- Sufficiency of the evidence requires further review
- Questions about whether the person or someone else might have been the perpetrator
- Potential errors made by the police in a stop, search, and seizure
- Charging errors made by the police
The prosecutor can ultimately decide to dismiss the charge, add additional charges, reduce the charge, or charge the individual as the police have recommended.
A pending charge typically refers to a charge filed by the prosecutor that is still going through the court process and has not been resolved through a plea agreement or trial verdict.
Do Background Checks Show Pending Charges?
In general, a pending charge will appear on an employment background check.
However, they might not always show up based on the state in which the offense occurred, the type of search, or the pending charge’s level of severity.
States have different laws about the types of pending charges that can be reported on background checks.
For example, California allows the inclusion of all pending charges in background checks.
While the state forbids reporting of arrests not resulting in convictions, it doesn’t prohibit the reporting of currently pending criminal charges.
By contrast, Arkansas only allows pending felony charges to be reported but does not allow the inclusion of pending misdemeanor cases on criminal background checks for employment.
Most state laws are similar to California’s, which means that most employers can expect to see pending charges on background check reports for any level of offense.
Whether or not a pending charge will appear in a background check depends on how comprehensive the report is.
For example, if you only conduct a county check, a pending charge in a different county or state will not appear.
My Applicant Has a Pending Charge – What Now?
If an applicant has a pending criminal charge, here’s how to deal with the situation.
1. Verify the Information
The first step you should take is to verify the accuracy of the information. Criminal records are sometimes incomplete or inaccurate.
2. Evaluate the Pending Charge as it Relates to the Position
If you verify the applicant has a pending charge, you need to evaluate it as it directly relates to the duties of the job before making a decision not to hire the person.
If you refuse to hire an applicant based on a pending charge without conducting a careful assessment of the charge based on the job duties, it could be considered to be discriminatory and result in litigation.
According to guidance from the Equal Employment Opportunity Commission (EEOC), your assessment should include a consideration of the nature of the offense, how long it has been since the offense occurred, and the duties of the job for which the applicant is applying.
Know Before You Hire
Employment Background Check Laws on Pending Charges
Federal Laws
Fair Credit Reporting Act (FCRA)
The Fair Credit Reporting Act (FCRA) protects the privacy of consumer information reported by consumer reporting agencies (CRAs) in employment background checks.
Under 15 U.S.C. § 1681c, the FCRA places a seven-year restriction on the reporting of the following types of information for positions paying less than $75,000 per year:
- Arrests not resulting in convictions
- Paid tax liens
- Civil lawsuits
- Civil judgments
- Bankruptcies
The law exempts positions paying $75,000 or more.
Pending criminal charges within the past seven years that have still not been resolved can be reported. Similarly, non-expunged convictions can also be reported regardless of age.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII of the Civil Rights Act of 1964 (Title VII) is a broad anti-discrimination law that prohibits workplace discrimination against applicants and employees based on their protected characteristics.
Under EEOC guidance, employers should individually assess conviction and arrest information as it directly relates to their positions before deciding to base a decision not to hire an applicant on that information.
This guidance is meant to prevent employment discrimination against minorities who might have criminal records.
State Laws
States have different laws about the types of criminal record information that can be reported on background checks.
Some states have laws restricting the reporting of arrests that didn’t result in convictions, including pending charges.
Others restrict the reporting of convictions that are older than a specific period, and some allow people to expunge criminal records and forbid reporting expunged records.
To understand the laws of your state, talk to your company’s legal counsel.
What Else Does a Background Check Show?
What will show up on a background check will depend on the reports you request.
Many employers request some or all of the following types of searches:
- Identity and Social Security number (SSN) verification
- Criminal history information
- Employment verification
- Education verification
- Professional license verification
- Sex offender registry search
- National terrorist watch list search
- Pre-employment drug screen
Let’s take a look at what might appear on a few of these reports.
Criminal History
Employers conduct criminal background checks to identify whether applicants and/or employees have any disqualifying convictions or pending charges.
A criminal background check reveals the following information about pending cases and convictions:
- Case number
- Offense date
- Offense type
- Offense level (felony or misdemeanor)
- Disposition (if disposed)
- Date of disposition (if disposed of)
- Sentence (if disposed)
A criminal background check might reveal criminal offenses at the federal, state, and county levels.
Employment Verification
Employment verification verifies the information reported by applicants about their employment histories.
An employment verification report shows the following information about each past employer:
- Employer’s name and address
- Employment dates
- Positions/titles held
Education Verification
Education verification confirms whether an applicant has honestly reported their educational history and has the qualifications for a job.
An education verification report reports the following information about the applicant’s past schools:
- School’s name and address
- Dates of attendance
- Whether the applicant earned a diploma, degree, or certificate
Professional License Verification
Professional license verification confirms whether an applicant with a license or certification has the proper qualifications for the position.
A professional license verification report reveals the following information about the applicant’s credentials:
- License or certificate type
- License or certificate number
- Issuance date
- Expiration date
- Status
- Disciplinary actions against the license or certificate
Pre-Employment Drug Screen
Many employers choose to condition employment offers on the ability of their candidates to pass a pre-employment drug screen.
Most employers request five-panel urine screens that check for the following substances:
- Marijuana (THC)
- Cocaine
- Opiates (heroin, oxycodone, hydrocodone, etc.)
- Amphetamines (amphetamines or methamphetamines)
- Phencyclidine (PCP)
If an applicant returns a positive drug test, the employer will likely withdraw their employment offer.
iprospectcheck: Your Employment Screening Partner of Choice
Employers that conduct pre-employment background checks need to be careful with how they treat pending criminal charges.
If an applicant has a pending criminal charge, an employer should carefully evaluate it before making a hiring decision.
At iprospectcheck, we have extensive experience conducting pre-employment background checks for employers in every state.
To learn more about the employment screening services we provide or to receive a free quote, call us today: (888) 509-1979
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.
FAQs
How much time does it take for pending charges to show up?
How long it might take for a pending criminal charge to appear on a background check will depend on the type of search the employer conducts.
County-level criminal background checks generally reflect pending charges first.
However, county courts typically only report information to the state intermittently. This means that a state-level check might not show a pending charge for several weeks or months.
What are the penalties for improperly using criminal records?
The penalties for improperly using an applicant’s criminal record information vary from state to state.
Some states, such as California, allow applicants to file lawsuits against the employer for improperly using criminal record information and recover monetary damages.
In other states, improperly using criminal history information is a crime.
Applicants can also file complaints with the Federal Trade Commission (FTC) against screening companies that improperly report criminal record information on background checks.
They can also file complaints with the Equal Employment Opportunity Commission (EEOC) if an employer improperly denied employment based on a pending charge or conviction that is unrelated to the duties of the job.
Does an applicant's pending charge indicate guilt?
A pending charge does not mean that the applicant is guilty of a crime. Instead, it means that a case is currently pending and has not been decided.
This makes it important to carefully consider pending charges and assess them as they relate to the open job before deciding against hiring the applicant.
A pending criminal case might also indicate the need to conduct additional checks to see if the applicant has any convictions or charges in other jurisdictions.
