Criminal background checks allow employers to find out if an applicant has a criminal history and even provide significant details about their criminal records. This gives them the ability to make informed decisions and helps them select an ideal candidate for any job position.
But what about pending charges? Are they reported in criminal background checks? After all, defendants are presumed innocent until proven guilty, so pending charges can’t be considered as proof of committing crime.
This article covers everything you need to know about pending charges, and what they mean for employers and applicants with such charges.
In Which States Are Pending Charges Reported?
All states in the US treat the reporting of pending charges differently.
For example, in Arkansas, pending felony charges are always reported on background checks, while reporting pending misdemeanor charges is barred by law.
On the other hand, in California, the reporting of all types of pending charges is allowed in background checks, and employers can even request to be updated if the charges result in a conviction.
Overall, most US states have state laws similar to California’s and tend to report both felony and misdemeanor pending charges.
What’s more, different states have different laws regarding whether employers can deny candidates because they have charges pending against them.
In Wisconsin, pending charges are reported in criminal background checks, and employers have every right to deny candidates if the charges pending against them are relevant to the position they’re applying for.
Similarly, employers can refuse candidates who are facing charges of violent felonies or sexual assault offenses.
What Types of Criminal Background Checks Report Pending Charges?
In addition to the state laws, it is important to consider the type of criminal background check being run. Based on the range they cover, criminal background checks can be split into three categories: county, state, and national background checks.
County background checks are the shortest-ranged and only examine the database of a specific county.
However, they have the most detailed and up-to-date records, so they are considered the most credible sources of criminal histories. Their obvious disadvantage is they can’t provide any information on the criminal records of another county, so their scope needs to be extended.
State background searches are run against the records database for the entire state, providing a broader outlook. The state criminal records are comprised of the records from all counties within a state making the state database much more comprehensive.
However, the problem with state background searches is urgency. Lengthy delays are very common when the data is transferred from the county to the state database, making them inadequate for pending charges where being up to date is essential. Additionally, these records are more prone to human error.
National background checks have virtually the same advantages and disadvantages as state background checks, only on an even broader scale.
For this reason, a combined approach that involves using all types of background searches is advised to get the best and most accurate results, particularly when looking out for pending charges.
What Does This Mean for Employers?
As it turns out, criminal background checks are not 100% foolproof, so the worst thing an employer can do is immediately disqualify a candidate based on a pending charge. They won’t just lose an adequate candidate but also make themselves liable for a discrimination lawsuit.
As an employer, there are a few things to consider when noticing a pending charge on the criminal background report of a prospective employee.
- Is the charge valid – as illustrated above, criminal records are sometimes incomplete or plain incorrect, so all steps must be taken with complete certainty.
- What was the offense – the nature of the offense the candidate is being charged with plays a major role in the employer’s decision. Charges for minor misdemeanors and violent or sexual felonies can’t be treated the same way.
- How recent are the charges – and what kind of behavior has the candidate shown ever since?
Employers have a legal and moral right to deny a candidate if their criminal history records present recent crimes, crimes that have clear relevance to the job, or extreme crimes like murder or sexual assault. However, these three points are somewhat subjective, and for the best results, it is recommended employers consult with labor lawyers before making a decision.
It is rarely a good idea to ask candidates directly about their past crimes and pending charges. If an employer needs more details about the candidate’s past, they can run additional checks like:
- Education background check
- Reference check
- Past employment background check
- Drug screening
- Social media background check
- Fingerprint or level 2 background check
- Credit background check
- Driving record background check
Making the right call regarding candidates with pending charges is never easy. It requires solid knowledge of the law and excellent decision-making qualities. In the end, it is up to the employers to make the judgment call and make a final decision, though, it is best to do it with as much information as possible.
What Does This Mean for Applicants?
First of all, applicants need to understand the law. While they have the right not to be discriminated against, they need to know that employers have rights as well, and in some cases, their past crimes can disqualify them from getting certain job positions. Just like employers, they can consult with labor lawyers as well before deciding they are unjustly denied.
Second, job candidates need to know that employers are obligated by law to request written consent before running background checks on them. If a candidate believes that an employer ran a background check on them without their consent, they can take legal action against it. On the other hand, if the applicant refuses to provide consent, the employer has every right to deny them the job.
Finally, if a candidate believes that the information provided on the criminal background check is incorrect, they have a right to dispute it. Applicants can find more information on how to dispute a background check report on the Federal Trade Commission website.
The Bottom Line
Pending charges appear on most background checks, though, there can be exceptions depending on the state, what the person is being charged with, and what type of criminal check is being conducted.
What is more important to keep in mind is that pending charges, just like arrests that didn’t result in a conviction, are no proof of a committed crime. In some cases, employers are legally obligated to put job negotiations on hold until a conviction or a dismissal is decided.
In other cases, employers can make a judgment call and deny the applicant if the charges are too extreme, or too relevant to the position in question; for example, a candidate applies for a delivery driver while their background check report shows pending DUI charges.
Like any other big decision, it is best to gather as much information as possible, and consider every indicator before employing an applicant with a pending charge on their report.
