How Pending Charges Impact Employment Opportunities: What You Should Know

Background checks have become a critical component of the hiring process, allowing employers to assess a candidate’s suitability for a job. One area that often raises questions during this process is the impact of pending criminal charges. If you’re facing pending charges or are curious about how they could affect your chances of securing a job, it’s essential to understand the implications. Here's a comprehensive look at how pending charges can influence employment decisions and what you can do to navigate the situation.

What Are Pending Charges?

A pending charge refers to a situation where someone has been formally accused of a crime, but the legal process has not yet reached a conclusion. The person has not been convicted, and the case remains unresolved. Pending charges can involve a wide range of criminal offenses, from minor misdemeanors to more serious felonies. The nature of the charge, along with the specifics of the case, can affect whether or not it shows up on background checks.

Will Pending Charges Show Up on a Background Check?

In most cases, pending charges are considered public records and are included in background checks. However, whether they will show up depends on several factors, including the jurisdiction where the charges were filed, the type of background check conducted, and the specific regulations that apply to the employer.

While most states allow pending charges to be reported, some jurisdictions may have restrictions on what can be disclosed, or how it can be used. For example, in some areas, pending charges may be visible only to certain types of employers or in specific industries.

It’s also important to note that some types of checks, like county criminal searches, state criminal searches, or national criminal history checks, are more likely to uncover pending charges than others. Employers may use these reports to gain insights into the legal status of a candidate, especially if the charge is related to the job in question.

How Do Employers Handle Pending Charges?

Employers must approach pending charges with caution. Hiring decisions should not be based solely on the existence of a pending charge. Discriminating against an applicant simply because they have pending charges could open the employer up to legal challenges.

To comply with regulations, employers should follow these guidelines:

• Individual Assessment: Instead of automatically rejecting candidates with pending charges, employers are encouraged to assess each case individually. They should consider the severity of the offense, its relevance to the role, and the applicant’s qualifications.

• Fair Chance Hiring: In many jurisdictions, Fair Chance or Ban the Box laws prevent employers from asking about criminal history too early in the hiring process, giving candidates a chance to be evaluated on their merits first.

• Legal Compliance: Employers must also comply with federal laws such as the Fair Credit Reporting Act (FCRA) and state-specific regulations when conducting background checks. These laws regulate how long criminal records, including pending charges, can be reported and how they can be used in hiring decisions.

How Long Do Pending Charges Take to Resolve?

The timeline for resolving pending charges varies based on the severity and complexity of the case. Misdemeanors typically resolve quicker than felonies due to simpler court procedures, while felony cases may take longer, sometimes even years, to reach a resolution.

Several factors influence this timeline, including:

• Court Backlog: High caseloads in certain jurisdictions can cause delays

• Case Complexity: More serious offenses or multiple charges may require extensive investigations, leading to longer delays

• Legal Proceedings: Some cases may go through appeals, continuances, or other legal motions that extend the resolution period.

What Should Applicants Do When Facing Pending Charges?

If you have a pending charge, transparency is key. Being upfront about the situation during the job application process can help build trust with potential employers. After receiving a job offer, consider explaining the situation in an open and honest manner. Provide details about the charge, its status, and any steps you’re taking to resolve it.

In addition, emphasize your skills, experience, and qualifications for the role. This will help demonstrate that you’re a strong candidate, regardless of the pending charge.

Can Employers Deny Employment Due to Pending Charges?

Employers have the discretion to decide whether to hire someone with pending charges. However, this decision must be made thoughtfully and in compliance with applicable laws. Blanket policies that automatically exclude individuals with pending charges are discouraged, as they may lead to discrimination claims.

Employers must also ensure that any adverse actions taken are legally justified and consistent with the nature of the charge. In many cases, a pending charge may not be relevant to the position being applied for, and the employer should focus on the applicant’s qualifications and ability to perform the job.

What Employers Should Consider When Reviewing Pending Charges

When reviewing candidates with pending charges, employers should take the following into consideration:

• Relevance to the Role: How does the charge relate to the job? For example, a theft charge might be more relevant for a position that involves handling money or valuables, whereas a charge for minor traffic offenses might be less relevant.

• Job Requirements: Some jobs, especially those in regulated industries, may have strict criteria for hiring individuals with certain types of criminal records. Employers in these industries should be aware of the specific laws and regulations that apply.

• State and Local Laws: Employers should familiarize themselves with local and state laws governing background checks and criminal history in the hiring process. Ban the Box laws or other restrictions on using criminal records may influence how they handle pending charges.

• EEOC Guidelines: The Equal Employment Opportunity Commission (EEOC) provides guidance on fair hiring practices, including the consideration of criminal records in employment decisions. Employers should ensure their policies comply with EEOC recommendations to avoid discrimination.

Conclusion: Navigating Pending Charges in Employment

Dealing with pending charges during the hiring process can be challenging for both employers and applicants. For employers, it’s crucial to take a fair and legally compliant approach when reviewing candidates with pending charges. For job seekers, it’s important to be transparent and understand your rights in the hiring process.

A thoughtful and individualized assessment is key to making informed decisions that protect both parties and comply with legal standards. By adhering to the principles of fairness and compliance, employers can mitigate the risks of discrimination and help create more inclusive hiring practices.