Do Pending Charges Show Up on a Background Check?

Employers implement background check programs to uphold the integrity of their business and maintain a safe workplace. Criminal record checks are common in these searches and reveal if a candidate has any convictions that disqualify them from the position.

Background checks show misdemeanors and felonies, but you may wonder if unresolved charges will appear. The appearance of a pending charge can drastically affect employers’ hiring decisions. Hiring someone with unresolved legal issues could prove to be harmful to a company or have no effect at all.

Find out what pending charges are, if they appear on background checks, and how they’re handled.

What Is a Pending Charge?

Pending charges are those filed by a prosecutor but still being resolved by the court. Someone with pending charges has been arrested for an alleged crime, but is still having their case reviewed.

Charges can be pending for multiple reasons, such as insufficient evidence, questions about the perpetrator, or police errors. Prosecutors decide the consequences a person may face; they may add charges, reduce them, charge them as the police suggested, or drop them altogether.

Do Pending Charges Show Up on a Background Check?

Whether pending charges appear on a background check depends on the state where the offense occurred, the type of search conducted, and the severity of the charge.

Pending charges can be reported, but how they appear on background checks can vary. Differences in state court reporting practices or data availability—particularly around misdemeanors—can lead to inconsistencies in what shows up. Additionally, state laws may affect how employers are allowed to consider this information during the hiring process.

The appearance of unresolved charges also depends on the extent of the background check search. Conducting a county check will not yield results in different counties or states.

How Long Does It Take for Pending Charges To Show Up on a Background Check?

How soon unresolved charges appear on background checks depends on several factors. The type of search conducted influences the duration the most. County-level searches typically yield these results first, and because county courts report information to the state intermittently, state-level searches may not yield them for weeks or months.

Delays in state-level checks can also affect employers’ hiring decisions. A pending charge in a state-level check can be resolved before an employer receives the check results, resulting in a decision using outdated information. County-level searches focus on where the candidate has lived or worked and can provide the most up-to-date and accurate information.

How quickly you receive results also depends on the efficiency of the reporting agency. ScoutLogic prides itself on its quick report time and accurate results. Receive background checks as soon as possible to streamline the onboarding process.

What States Do Not Show Pending Charges on Background Checks?

Understanding state laws is essential for employers to practice fair hiring practices and maintain compliance.

• Massachusetts: Under the Criminal Offender Record Information Reform, information regarding pending charges is limited to employers.
• Illinois: Under the Illinois Human Rights Act, employers cannot use pending charges to deny employment, and consumer reporting agencies cannot disclose them in background checks.
• Oregon: Under Oregon’s “Ban the Box” law, employers must wait until a conditional offer has been made before considering pending charges.
• Nevada: Under Nevada law, employers cannot ask about or consider pending charges, and they cannot be reported on background checks.
• California: Under California Labor Code and the Fair Chance Act, employers are prohibited from asking about criminal records until a conditional offer of employment has been made and cannot consider pending charges.
• Washington, D.C.: Under the Fair Criminal Record Screening Amendment Act, employers cannot ask about or consider pending charges unless directly related to the job.
• Minnesota: Under state laws, employers cannot disqualify candidates based on pending charges.
• Colorado: Under state laws, employers are not allowed to deny employment based on pending charges.
• New York: Under the New York City Fair Chance Act, employers cannot disqualify candidates based on pending charges.
• Arkansas: Under state law, only pending felony charges can be reported on background checks, not misdemeanor charges.

What Should Employers Do if an Applicant Has a Pending Charge?

If an applicant has an unresolved charge, employers must navigate the situation carefully.

1. Verify the Pending Charge: Verify the accuracy of the accusations reported. Some results are sometimes incomplete or misleading.
2. Review Company Policy: Familiarize yourself with company policy regarding background checks and pending charges, and follow its guidelines.
3. Consult Legal Counsel: Discuss your options with legal experts to maintain compliance.
4. Evaluate the Severity of the Charge: Determine whether the charge is a minor issue or something severe, such as a violent crime.
5. Consider the Job Position: Evaluate how the charge affects the candidate’s ability to conduct job duties.
6. Weigh the Risk: Think about how hiring the candidate may affect the workplace or your company’s reputation.
7. Seek Context: Ask the candidate to explain the charges to understand the situation better.
8. Practice Fair Hiring Practices: Refusing an applicant based on an unresolved charge without thoroughly assessing it can be considered discriminatory and result in legal action. Your assessment should consider the offense type, how long ago it occurred, and the job duties.
9. Consider Conditional Hiring: Offer a temporary job or delay hiring until the charges resolve.
10. Record Your Decision-Making Process: Document how you came to your hiring decision. These records protect your company from potential lawsuits.

When Are Pending Charges Resolved?

How soon a pending charge is resolved varies by case. The court’s schedule and case complexity can affect the trial date. The legal process can range from a few months to several years, depending on court business, resources, staff, the defendant’s cooperation, the lawyer, and criminal record.

Frequently Asked Questions

Can You Get a Job With Pending Charges?

Yes, because unresolved charges do not bar applicants from being hired. Depending on the state, these accusations may not be considered during hiring. Employers are advised to consider the offense type, how long ago it occurred, and the job duties. Unresolved charges do not indicate guilt, as they can be dropped.

Final Thoughts

Pending charges give employers plenty to think about. Understanding the laws and regulations that apply in your state will help you navigate the situation when a candidate’s unresolved charges arise.

ScoutLogic can streamline the hiring process. With quick and accurate results, we help employers maintain compliance and make informed hiring decisions with the most up-to-date information. Learn more about our screening services or book a free assessment today.

David Garcia

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.