When Do Pending Charges Appear in Background Screening?
Understanding an individual's past and current standing within the criminal justice system is an important part of the hiring process. Evaluating a candidate's suitability should and usually does include considering whether they could pose a risk to your business or its customers because of criminal behavior. Most of the time, background screening services act as tools to discover whether an applicant has criminal convictions on their record. However, as you evaluate the results of conducting criminal background screening, you might find it may not always be so simple.
You may not always or even often see background checks report solely on the candidate's arresting incidents with police. Because arrest records without convictions offer no proof that a person committed a crime, many states bar the use of these records in employment decisions. However, what about when someone is in the middle of criminal proceedings? These matters can and often do appear on reports. Seeing that someone has pending criminal charges on their record can lead to many questions.
What is a background screening report that indicates a candidate has pending charges supposed to tell you? Let's explore what this term means in the first place and consider what employers should know.
What are the pending charges?
Pending charges on criminal background checks can refer to two different but related things. In one case, it could refer to an arrest that may lead to formal criminal charges but has not yet. These situations occur when a prosecutor takes time to evaluate the facts of an arrest and the associated case to determine if there is a good reason to try to bring the case to trial. If they decide to do so, they will formally charge the individual and begin further criminal proceedings. Someone whose record indicates a pending case could be awaiting trial — or they could have their charges dropped, resulting in neither a conviction nor a permanent criminal record.
"Pending" on a background check could also mean that someone is currently on trial or in the court system, but no final verdict has been rendered. This may also display on some reports as "awaiting final disposition," which can occur near the end of a criminal trial when the court expects a verdict. In either case, it is important to remember that the record is not a definitive conviction or absolute proof of a candidate's guilt or culpability.
Do pending charges appear on background checks regularly?
Yes. In most cases, pending charges will appear during employment background screening processes. You may see a "Pending" case status or "awaiting disposition." Even though these statuses appear in the results, it is critical to remember that a pending status is not definitive proof that a person is guilty of a crime. Only a final determination can do that. A "pending" charge could still turn into a dismissed case, even very far into a prosecution.
Nonetheless, employers have the prerogative to consider this information during the hiring process and in the context of the job sought. Since a conviction is possible, it is fair game for reporting and evaluating. As with all background check questions, however, you should not use arrests or pending charges as an absolute barrier to employment. Dismissing applicants solely because of a pending charge is potentially discriminatory.
How long does it take for pending charges to appear in criminal history checks?
How soon pending charges appear on a third-party criminal record check will depend on several factors. Most often, the type of history checks you order will play a major role. Since most criminal charges and convictions are entered at the county courthouse level, county criminal checks will always reflect a pending charge first. Courts report their records into the larger state record repositories intermittently and rarely on the same day. This pattern of delayed updates means that a pending charge might take weeks or months to show up on state checks.
These delays can affect considerations further along in the process, too. Consider that something listed as a pending charge in a state-level check could have undergone a resolution by the time you receive results from your background screening companies. You can run into this same issue using larger, multi-jurisdictional searches of proprietary criminal record databases. If you aren't vigilant about finding the most updated information, you could inadvertently make decisions based on outdated information.
For these reasons, it is wise to order county criminal history checks as part of employment criminal background checks. County checks that focus on the areas where a candidate has lived or worked within the past several years will often present the most in-depth and up-to-date version of that person's criminal history.
Can you take adverse action because of pending charges?
No one can provide a definitive answer to this question except employers themselves. Thorough research is important during the hiring process. For example, you likely won't be able to determine the level of detail you need from a free background check. You may need to purchase the services of an agency that can send individuals directly to a courthouse to obtain the most recent updates. Understanding someone's case status, and the reasons why they were charged, is an important step.
As mentioned, you must handle the process with care since pending cases are not yet conviction records. However, for example, it could be easy for an employer to justify declining to hire an applicant facing pending charges for murder or aggravated assault. The potential risk and relationship to the job could lead you towards other candidates.
Some businesses instead choose to pause the hiring process on individuals with pending charges until a final determination of guilt or innocence. Such a process is less legally fraught with challenges. A candidate can withdraw their name for consideration during this time, or they may wait to return with an acquittal or dismissal in hand. Always follow local "ban the box" ordinances and the federal FCRA's requirements for adverse action during this undertaking.
In some cases, employers are legally obligated to put applications on hold if a candidate has certain pending charges. For instance, a bank cannot hire someone with a pending money laundering charge on their record. Instead, the bank must hire someone else or wait for a court to clear the candidate of all charges before hiring.
When do pending charges resolve?
There is no definitive way to know when pending charges will change into a final disposition. Every state works differently, and county courts may move at their own pace. It can take weeks or even months for some cases to resolve, depending on the complexity of a case and the case volume in court. Because of this uncertainty, ordering a county-level search for the most recent records can ensure you have updated information in hand. Using such data, you can decide whether to pause the hiring process, decline the candidate, or proceed.
Though interpreting background checks can take some practice, understanding the results of a background check form is a valuable tool for assessing every job applicant. Visit our Learning Center today to learn more about common background screening questions and other important topics, such as compliance, legislation, and more.
About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments