Most of the time, we think of criminal background checks as tools to find out about a person’s criminal convictions. 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. What happens if someone has a pending charge on his or her record?
In most cases, a pending charge will show on criminal background checks. As with an arrest record, a pending charge is not proof that a person has been convicted of or found guilty of a crime. However, since the case is still open—and since a conviction is still possible—this information can be reported fairly on a background check. Employers are allowed to consider this information in the context of the job at hand.
How quickly a pending charge shows up on criminal background checks will depend on the background check that the employer is using. 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 into state repositories intermittently, which means that a pending charge might take weeks or months to show up on state checks.
In some cases, what is listed as a pending charge on a state check may have even been resolved by the time an employer is running criminal background checks. The same is true for multijurisdictional database background checks.
For these reasons, it is always 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.
As for whether a pending charge is grounds for disqualification from job consideration, employers need to make that decision on a case-by-case basis. 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 his or her record. Instead, the bank must either hire someone else or wait for a court to clear the candidate of all charges before moving forward with hiring.
In other cases, employers may decide that a candidate’s pending charges indicate an employment risk. For example, a restaurant likely wouldn’t hire someone with a pending DUI charge as a delivery driver.
For answers to more common background check questions, visit our Learning Center.