In many states, employers are not allowed to consider arrest record information when making hiring decisions. The idea is that convictions offer proof of guilt while arrests offer no such concrete evidence. As a result, laws often bar hiring managers from considering arrests or dismissed charges when deciding whether to hire a candidate. When happens when a candidate has pending charges on his or her record? Do those charges show up on a background check report, or are they considered arrest information and consequently unusable in many hiring situations?
Pending charges will usually show up on a criminal background check, but not always. As with arrests, there is variance in policy from state to state on this issue. Whether a pending charge shows up on a background check will also depend on the type of crime and the type of background check that the employer conducts.
Most states consider all pending criminal charges to be fair game for background checks. So, if you conduct a county criminal history search somewhere in California and your candidate is facing criminal charges in the county you searched in, the check should show the pending charges alongside other criminal history information. Location matters: if an employer conducts a county criminal history check in Los Angeles County and the candidate is facing criminal charges in Orange County, those charges won’t show on the background check.
There are parts of the country where the rules are different. In Arkansas, for instance, background checks can show pending charges but not all pending charges. State law draws a line between pending felony charges (which will show on a background check) and pending misdemeanor charges (which will not show on a background check).
The type of background check you run will impact whether you see a pending charge on a candidate’s record. Most crimes are tried at the county court level, which means a county criminal history search in the area where a candidate lives or works is your best bet for finding pending charges associated with his or her name.
At backgroundchecks.com, we update our instant criminal history database to reflect charges, convictions, or dismissals, but keep in mind that a charge that shows as pending on a background check may have been recently dismissed or new charges may have been filed against your candidate. We encourage businesses to use a mix of different checks, including both county and database criminal history searches, for a more complete picture.
If you do see a pending charge on a candidate’s record, that isn’t necessarily a valid reason to disqualify the applicant from job consideration. Just as with a conviction, it is an employment best practice to always consider the arrest or charge in the context of the job at hand. You must also follow all FCRA guidelines if you decide to rescind a job offer or disqualify the candidate.
If you would be willing to hire the candidate if the charge is dismissed but not if the charge leads to a conviction, you can use backgroundchecks.com’s ongoing criminal monitoring solution to keep an eye on the outcome of a case.