When a Pending Charge Shows on a Background Check

Understanding an individual’s past and current standing within the criminal justice system is an essential hiring consideration. Evaluating a candidate’s suitability includes considering whether they could pose a risk to your business or customers because of criminal propensities. Background screening services act as tools to discover whether an applicant has a criminal conviction on their record. However, evaluating the results of criminal background check reports may not always be so simple—for instance, discovering a pending charge on a background check.

You’ll seldom see background checks that report solely on the candidate’s arresting incidents with police. Because arrest records without convictions offer no proof that someone committed a crime, many states ban using these records in employment decisions. However, what’s the likely result when someone is in the midst of criminal proceedings? These matters can and often do appear on reports. Seeing that someone has pending criminal charges can lead to many questions. 

What can a background screening report with pending criminal cases tell you? Let’s explore what this term means and consider what employers should know.

Will pending criminal charges show up in a background check, and what are they?

When pending charges show up on a background check, it could refer to two different but related aspects. In one case, it could represent an arrest that may lead to formal criminal charges. 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 valid reason to bring the case to trial.

If they decide to do so, they will formally charge the individual and begin formal criminal proceedings. Applicants whose records show a pending charge could be awaiting trial—or they could have their charges dropped, resulting in either an acquittal or permanent criminal records.

“Pending” on a background check could also mean that someone is on trial or in the court system but has yet to reach a final verdict. This status may also be displayed 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 critical to remember that the record is not a definitive conviction or absolute proof of a candidate’s culpability.

Do pending charges appear on a background check regularly?

Yes. In most cases, pending charges will appear during the employment background screening process. You may see a “pending” or “awaiting disposition” case status. 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. Pending criminal cases could still become dismissed cases late in a prosecution.

Nonetheless, employers have the prerogative to consider this information during the criminal record check and in the context of the vacancy. Since a conviction is possible, it is fair game for reporting and evaluating. However, as with all employment background checks and questions, you should follow federal law and not use arrests or undecided charges as an absolute barrier to employment. Dismissing applicants solely because of an awaiting charge is potentially discriminatory.

How long does it take for pending charges to appear in criminal history checks?

How soon charges appear on third-party criminal record checks will depend on several factors. Most often, the type of history checks you order will determine the duration. Since most criminal charges and convictions begin at the county court level, county criminal record checks will always reflect a pending charge first.

Courts transfer their records to 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 also affect considerations further along in the process. Consider that a pending charge in a state-level check could be resolved by the time you receive results from your consumer reporting agencies. You can run into the same issue using more extensive, 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. A county check that focuses 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 an employer take adverse action because of pending charges?

No one can provide a definitive answer to this question except employers. Thorough research is imperative when making hiring decisions. 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.

Another crucial step is understanding someone’s case status and why they were charged.

As mentioned, you must handle the process carefully since pending cases are not yet convictions. For example, it could be easy for an employer to justify declining an applicant facing pending charges of murder or aggravated assault. The potential risk in relation could lead you towards other candidates.

Some companies 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 fraught with legal 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.

Sometimes, employers are legally obligated to put applications on hold if a candidate has specific pending charges.  For instance, a bank cannot hire someone with an awaiting 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 are pending charges resolved?

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 for employment can take some practice, understanding the results of a report is a valuable tool for assessing every job applicant. Visit our Learning Center today to learn about common background screening questions and other important topics, such as compliance, legislation, and other valuable information.