Background checks are now a routine part of the hiring process for many companies. Employers use them to protect their employees, their customers, and their reputations.
But what happens when a background check reveals pending criminal charges? Do pending charges show up on background check reports? And if they do, how should employers interpret that information?
The answer isn’t always simple. Whether or not pending charges appear on a background check can depend on several factors. This article will give you a detailed overview of how pending charges are handled in background checks, what the legal considerations are, and some best practices for employers who are navigating this tricky situation.
What is a Pending Charge?
A “pending charge” means someone has been arrested and accused of a crime, but their case hasn’t been decided in court yet. It’s important to remember that a pending charge is not the same as a conviction. People are presumed innocent until proven guilty.
A pending charge can have a few different outcomes. The case could be dismissed, the person could be found not guilty (acquitted), they could be convicted, or they might agree to a plea bargain.
Do background checks show pending charges?
Generally, yes, pending charges will show up on a background check. Background checks usually involve a search of criminal history records. These records contain information about arrests, and that may include a pending charge.
But just because a pending charge can show up doesn’t mean it will. State laws vary a lot in this area. What one state allows, another may prohibit.
The Fair Credit Reporting Act (FCRA) also plays a role. The FCRA limits the reporting of some information when the job being applied for pays less than a certain amount.
It’s also important to know what kind of background check is being conducted. Some background checks are very thorough, while others are limited to state-level information.
Employment Background Check Laws on Pending Charges
When it comes to background checks for employment, the laws around reporting pending charges can be a bit of a legal minefield. Here’s a breakdown of some of the key federal and state laws that govern what employers can see and how they can use that information.
Federal Laws
At the federal level, two main laws come into play: the Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964.
Fair Credit Reporting Act (FCRA)
The FCRA is all about protecting your consumer privacy and making sure the information used in credit reports is accurate. It also impacts employment background checks because these checks are often considered “consumer reports” under the law.
The FCRA sets rules for how employers can use background checks. For example, if the job pays less than $75,000 a year, there are restrictions on reporting certain adverse information, like older bankruptcies. (This threshold is not adjusted for inflation and is rarely relevant these days.)
Employers have responsibilities under the FCRA, too. They need to disclose that they’re going to run a background check, get your authorization to do so, and follow specific procedures if they decide not to hire you based on what’s in the report. This includes giving you a copy of the report and a chance to dispute any inaccuracies.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII is the big one when it comes to prohibiting discrimination in employment. It says employers can’t discriminate based on race, color, religion, sex, or national origin.
So, how does this relate to background checks? Well, using criminal history information in hiring decisions can sometimes lead to what’s called “disparate impact.” This means that even if an employer isn’t intentionally discriminating, their background check policy might disproportionately exclude people from certain protected groups.
For example, if an employer refuses to hire anyone with a criminal record, that policy could disproportionately affect Black and Hispanic applicants, who are statistically more likely to have been arrested or convicted of a crime. To avoid this, the Equal Employment Opportunity Commission (EEOC) has issued guidance on how employers should evaluate criminal records and avoid discrimination. The EEOC emphasizes that employers should consider the nature of the crime, how long ago it happened, and how it relates to the job in question.
State Laws
Now, here’s where things get even more complicated: state laws. There are significant variations in how states handle the reporting of pending charges on background checks.
Some states, like California, allow reporting of all pending charges. Other states, like Arkansas, restrict reporting to felonies or specific types of offenses. It really depends on where you live and where the job is located.
Many states have stricter regulations on the use of criminal records in employment. “Ban-the-box” laws, for instance, prohibit employers from asking about criminal history on the initial job application. This gives applicants a chance to get their foot in the door and be evaluated on their qualifications before their criminal record is considered.
Some states also limit the use of arrest records that didn’t lead to a conviction. The thinking here is that an arrest alone shouldn’t be held against someone, especially if they were never found guilty of a crime.
If you’re an employer, it’s crucial to stay up-to-date on the laws in each state where you operate. What’s legal in one state might be illegal in another, and you don’t want to run afoul of the law.
My applicant has a pending charge – what now?
If a background check turns up a pending charge for one of your applicants, it’s important to take a beat and proceed carefully. Here’s what to consider:
Verify the information
First, make sure the information is correct. Criminal records can sometimes contain errors or inaccuracies.
You can verify the information by contacting the court listed on the background check or by using a different background check provider with a proven record of accuracy.
You also need to give the applicant a chance to explain the situation. Allow them to provide context and clarify the circumstances surrounding the pending charge. There may be more to the story than what’s on paper.
Evaluate the pending charge as it relates to the position
It’s vital to conduct an individualized assessment. Consider the nature of the offense, how long ago it occurred, and the requirements of the job. Does the pending charge pose a risk to the safety of other employees or customers? Does it relate to the essential functions of the job?
Avoid blanket policies that automatically disqualify anyone with a pending charge. Each case should be considered on its own merits.
For example, a pending theft charge for someone applying for a cashier position would likely be more concerning than a pending DUI charge for a data entry clerk. Similarly, a pending DUI charge could be more problematic for a delivery driver than for someone working in a warehouse.
What else does a background check show?
Background checks vary, but many will include some or all of the following elements:
- Criminal history. This may include conviction records, arrest records (depending on state law), and, yes, pending charges.
- Employment verification. Employers often want to verify your previous employment history, including job titles, dates of employment, and responsibilities.
- Education verification. A potential employer may want to verify the degrees, diplomas, and certifications you’ve earned.
- Professional license verification. If the job requires a professional license or certification, expect that to be checked.
- Pre-employment drug screen. Some employers require drug testing to detect the presence of illegal substances.
Depending on the nature of the job, other potential components might include sex offender registry checks and national terrorist watch list checks.
Final Thoughts
Navigating the legal landscape around background checks and pending charges can be tricky. Employers need to use background checks ethically and responsibly, keeping in mind that a pending charge isn’t the same thing as a conviction. Just because someone has been charged with a crime doesn’t mean they’re guilty.
If you’re an employer considering using background checks, it’s a good idea to seek legal counsel. An attorney can help you understand and comply with all the relevant laws and regulations. This will help you avoid making decisions that could lead to legal trouble or unfair treatment of job applicants.