Will Pending Charges Show Up On A Background Check?
In most cases, pending charges do show up on background checks. However, this can vary slightly based on the type of pending charges, the state in which the crime occurred, and the type of criminal search conducted.
Differences in states, type of crime, and employers
Keep in mind that each state has different laws about what kind of pending charges show up in a background check. In Arkansas, any pending felony charges will show up in a background check, but misdemeanor charges will not. California, on the other hand, allows all pending charges to be included in a background check, and employers can even opt to be notified should those pending charges result in conviction.
Most states are like California, so the odds are that any pending charges will show up in a background check--regardless of whether or not it was a misdemeanor or felony. As with any type of background check though, the information that shows up is dependent on how closely someone checks the records. If an employer only runs a county check, and the applicant has pending charges in another county, then the pending charges won't show up. Employers are usually fairly thorough in their background checks, so these pending charges are usually found.
What This Means for Employers
When a pending charge crops up on a background check, don't panic and immediately disqualify the applicant. Criminal records can be incorrect or incomplete, so you want to be sure the information is valid.
Refusing to hire someone with a criminal history can also be considered discrimination and discrimination can lead to a lawsuit. So start by checking your state's employment laws carefully (as they can vary drastically) and/or consulting a labor lawyer.
Next, ask yourself if the pending charge is relevant. The Equal Employment Opportunity Commission (EEOC) states that employers should consider the following:
- The nature of the offense
- The time that has passed since the offense
- The nature of the job the applicant is applying for
The only way to legally deny someone a job because of past crimes is to prove that your reason for denial fits into one of those three points; that is, the offense was recent, is relevant to the job, and was extreme (e.g. sexual assault or murder). However, since these points are subjective, it's still risky business to deny someone a job because of past crimes, particularly if they are still pending.
You might think the best course of action would be to just ask the applicant about the pending charge. While this isn't technically illegal, the EEOC discourages it. And think about it – if you ask questions about someone's criminal history but then end up not hiring that person, it can be perceived as discrimination.
One thing you can ask an applicant is whether or not they've lived in any other states. You can then use that information to run additional background checks and see if there are other pending charges. If you're still unsure of the accuracy of the applicant's criminal charges, ask for more detailed personal information (like a social security number) that you can then use to run more detailed background checks.
It's difficult to know what to do when an applicant has pending charges. At the end of the day, it remains a judgment call on your part. Just make sure you know the local laws and are following them carefully.
What Applicants Can Do About It
It's always best to start by consulting a lawyer. If you'd rather not, head to your state's main judicial website and learn about your states laws and protections for individuals with pending charges. You should also review the EEOC website to learn about the federal laws that protect employees from discrimination.
Proving that you've been denied a job because of pending charges is difficult. However, employers who use third-party background check services are required by law to obtain your written consent before running a check. If this did not happen, you can ask the employer about it and take legal action if necessary.
If you receive your background check from the employer and think the information is wrong, you can dispute it. While background checks do not include your credit score, the disputing process is the same as it is for disputing your credit report. The Federal Trade Commission provides a step-by-step guide for disputing errors here.
So, Will Pending Charges Show Up on a Background Check?
Yes, pending charges will show up on background checks. The only reason they wouldn't is if a state has a law that only shows certain types of pending charges.
Luckily, even if a pending charge does show up, it doesn't mean an applicant isn't a good fit or will be denied a job. It could mean that the information was incorrect or that the pending charge was just a one-time occurrence. However, it is legal to deny someone a job because of a criminal history where the crime was recent, serious, and relevant to the job. Since pending charges are recent, there's a chance they will be used to your disadvantage during the hiring process.
Additional Resources You Might Find Interesting: