Pending Charges and Background Checks: What You Need to Know

Pre-employment background checks play a crucial role in maintaining workplace safety, protecting organizational reputation, and supporting informed hiring decisions. From misdemeanors and felonies to DUIs and open cases, a comprehensive background check covers it all.

Among the most frequently asked questions during this process is whether pending criminal charges are included in background reports. If you’re currently facing charges without a conviction, you may understandably wonder: Will this information show up on my background check?

The short answer is yes, pending charges can appear on a background check. However, how they are reported can vary significantly depending on the type of screening conducted, the jurisdiction, and the purpose of the background check.

At SRA Screening, we have profound experience conducting employment background screenings. Let us explore pending charges on background checks in the United States.

What is a Pending Charge?

In criminal law, a pending charge refers to a situation in which an individual has been formally accused of a crime, but the legal case has not yet reached a conclusion. While the individual has not been convicted, the charge remains active within the judicial system.

The in-between status often raises questions, especially during employment background checks.

Do Pending Charges Show Up on a Background Check?

Will a pending case show up on a background check? As mentioned above, in general, yes, they can. However, the visibility of a pending charge depends on several key factors, including the jurisdiction, the nature of the offense, and the type of background check conducted.

Some states may place limits on what information can be reported or how it can be used, while others allow broader disclosure. Most state laws allow employers to view pending charges on a background check report.

However, if you want to be certain, you should consult your local and state laws, as regulations can vary by jurisdiction.

Most criminal background checks will reveal pending charges, especially if the check includes searches of:

• County Criminal Searches
• State Criminal Searches
• National Criminal History Search

Employment Background Check Laws

Although there is no single federal law that universally regulates the reporting of pending charges in employment background checks across all 50 states, several key regulations and oversight agencies play a significant role in shaping how this information is disclosed and utilized.

• State-Specific Laws and Restrictions:

Each state has varying laws on what can be reported and how it can be used for employment. Some states have laws restricting the reporting of certain types of non-conviction information on background checks and limiting how far back information can be reported. To understand the laws of your state on pending charges, talk to your company’s legal counsel.

• Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act protects the privacy of consumer information reported in employment background checks. The FCRA has a seven-year reporting limit for non-conviction information. However, this seven-year rule typically does not apply to criminal convictions or pending charges representing an unresolved legal matter.

Additionally, the law exempts positions paying $75,000 or more. Charges are universally part of public court records and will appear on background checks. Employers must be aware of and comply with federal laws like the FCRA, and fair chance laws must also be considered during hiring.

• The Equal Employment Opportunity Commission (EEOC)

The EEOC guides employers on using criminal records in employment decisions. The goal is to avoid discrimination. They emphasize that:

1. No Automatic Disqualification: Employers should not have blanket policies for pending charges. They cannot automatically exclude individuals with pending charges or even convictions.
   
   
2. Individualized Assessment: Employers must conduct an “individualized assessment.” This allows the candidate to explain.
   
   

For employers, a pending charge can raise concerns about potential risks, liability, and the applicant’s suitability for the role. Remembering that a pending charge does not automatically disqualify an applicant is vital. Employers are often advised to assess each applicant individually. Discriminatory practices based on pending charges can be challenged under federal and state laws.

What Can You Do As an Applicant/Employee?

If you have a pending criminal charge, it’s important to be prepared to discuss the matter. After receiving a job offer, consider having an open and honest conversation with the prospective employer. Explain the circumstances surrounding the charge, including the nature of the charge, the status of the case, and the steps you are taking to resolve it. Reinforce your value as a candidate by highlighting your qualifications, relevant experience, and the skills that make you a strong fit for the position.

How Long Do Pending Criminal Charges Take to Resolve?

The resolution time for pending criminal charges in the United States varies. It can range from a few weeks to several years. There’s no single, fixed timeline, as many factors influence the duration.

Key Factors Influencing Resolution Time:

1. Severity and Complexity

• The severity and complexity of the charge significantly impact resolution time—misdemeanors are generally resolved more quickly due to simpler procedures, while felonies often require extensive investigation and legal proceedings, leading to longer timelines.
  
  
• Multiple charges against a defendant can increase the complexity and time. 
  
  

2. Court Caseload and Jurisdiction

• Court caseloads and jurisdictional factors can significantly impact how quickly a case moves forward. High case volumes, varying efficiency across courts, and scheduling limitations of the assigned judge often contribute to delays in legal proceedings.

Pending Charges and Background Checks: What Employers Should Know

Navigating pending charges requires a careful understanding of legal obligations and best practices. Here is what employers must know about background checks –

• Pending criminal charges that have been formally filed in court are considered public records and will typically appear on background checks.
  
  
• Employers must not automatically deny employment based on a pending or criminal charge. Instead, they are required to consider applicable legal frameworks, the nature of the charge, and its relevance to the position. Blanket disqualification policies may lead to discrimination claims and should be avoided.
  
  
• Prior to conducting any background check, employers must provide a clear written disclosure to the applicant and obtain their consent. If any adverse action is taken based on the results, the applicant must also receive a copy of the background report and a summary of their rights under the Fair Credit Reporting Act (FCRA).
  
  
• The Equal Employment Opportunity Commission (EEOC) offers guidance to help employers comply with Title VII of the Civil Rights Act of 1964, emphasizing the importance of fair, individualized assessments to avoid discriminatory practices.
  
  
• Ultimately, all companies must strictly adhere to federal, state, and local laws governing background checks, including proper disclosure, consent, and adverse action procedures. Fairness, consistency, and legal compliance should guide every step of the decision-making process.
  
  

Pending charges are a reality that employers may encounter during background checks. Navigating them successfully requires a strong understanding of legal obligations. A thoughtful and individualized approach will help employers make informed decisions. They can minimize the legal risk and promote equitable opportunities. 

How SRA Screening Streamlines Background Checks?

Pending charges and background checks are complex processes. For job seekers, transparency, preparedness, and understanding of their rights are paramount.

For employers, a pending charge requires a careful and legally compliant approach. The focus should always be on the charge’s job-relatedness and its impact on the workplace. Both parties can benefit from an informed and fair process in an evolving legal climate.

SRA Screening is a trusted and compliant platform for efficient background check procedures. We can help your business make informed decisions and streamline hiring, keeping the process legally compliant and fair.

FAQs: Pending Charges and Background Checks

1. How long do pending charges take to appear on a background check?

Once formal criminal charges are filed, they generally become public records immediately. However, how quickly they appear on a background check depends on the court system, CRA processing, and the severity.

2. Does having a pending charge on your record mean you are guilty?

No. A pending charge means that you have been formally accused of a crime. The legal process, which determines guilt or innocence, is ongoing. Until an outcome is reached, the charge remains “pending.”

3. Can a job not hire you because of pending charges?

Yes, a job can decide not to hire you because of pending charges. However, there are significant legal limitations and considerations they must follow. It is not an automatic “no,” and employers cannot have blanket policies.

4. How long does it take to get the background check?

At SRA Screening, our average turnaround time for a completed background check is 24-72 hours. Processing times may vary depending on the specific searches requested, the jurisdictions involved, and the responsiveness of relevant agencies.

To learn more about how pending charges affect employment, consult SRA Screening!

DISCLAIMER: This blog post is for informational purposes only and is not legal advice. Please consult a qualified professional before making any decisions.

The FCRA is enforced federally, but states may also implement it and have their consumer reporting laws. You may have additional rights under state law. Contact your state or local consumer protection agency or attorney general for more information.