Pending Charges vs. Arrest Records: Key Differences for Background Screening

When applying for a job, rental housing, or even certain professional licenses, most people expect a background check. But one area that creates a lot of confusion—and anxiety—is how pending charges and arrest records appear in those checks, and how employers interpret them. It is important to understand the influence of pending charges in background checks.

Understanding the difference between pending charges and arrest records is crucial for both applicants and employers. While both are part of the criminal justice system, they carry different legal meanings and implications. Let’s explore what each term means, how they show up in background checks, and what rights you have if either appears on your record.

What Are Pending Charges?

A pending charge means that formal legal action has been taken against you, and your case is still open. Typically, this occurs when:

• You’ve been arrested and charged, but the court hasn’t reached a verdict yet.

• The case is awaiting trial, plea bargaining, or dismissal.

• The charges have been filed but not adjudicated.

Pending charges can vary in severity. They could involve misdemeanors like shoplifting or more serious felonies like assault. Regardless of severity, pending charges are not convictions—there’s been no final legal judgment.

How Do Pending Charges Show Up on Background Checks?

In most jurisdictions, pending charges can appear on criminal background checks, especially if the check searches court records and active cases. However, how they appear depends on:

1. State laws: Some states restrict reporting non-conviction information after a certain time.

2. The type of background check: Basic name-based checks might only reveal convictions, while more comprehensive searches can pull pending court cases.

3. The employer’s industry and regulations: For example, jobs involving children, financial institutions, or government positions often require more detailed reports.

Employers should remember that pending charges don’t prove guilt; they only indicate that legal proceedings are underway.

What Are Arrest Records?

• An arrest record documents that a person was taken into custody by law enforcement. It includes:

• The date and nature of the arrest.

• The alleged offense.

• Law enforcement agency details.

An arrest record does not necessarily mean you were charged or convicted. Sometimes, people are arrested and released without charges being filed, or charges are dropped later.

How Do Arrest Records Show Up on Background Checks?

Arrest records can also appear on background checks, depending on state laws and the reporting agency. However, many states have enacted restrictions to protect individuals from discrimination based on arrests that didn’t lead to charges or convictions.

For example:

• Some states prohibit employers from considering arrests that didn’t result in convictions.

• The EEOC (Equal Employment Opportunity Commission) cautions employers against using arrest records alone to deny employment, as this could lead to discriminatory practices.

Key Differences Between Pending Charges and Arrest Records

Here are the primary distinctions that matter in the context of background screening:

1. Legal Meaning: Pending Charge: Formal legal action has been initiated; the case is active.

2. Arrest Record: Documents an interaction with law enforcement, not necessarily tied to a formal charge.

3. Proof of Guilt: Neither pending charges nor arrests equate to guilt. Only a conviction does.

4. Background Check Visibility: Both can appear on certain reports, but the visibility depends on state law and type of check.

5. Employer Considerations: Pending charges are often seen as more relevant than mere arrest records, since they indicate an ongoing legal matter.

6. Employers are advised to consider job relevance before making decisions based on pending charges.

7. Legal Protections: Federal and state laws place limits on how arrest and pending charge information can be used. For example, Title VII of the Civil Rights Act requires employers to consider the nature of the offense, how long ago it occurred, and its relevance to the job.

Why Employers Care About the Difference

Employers often run background checks to reduce risk and ensure workplace safety. However, they must walk a fine line between due diligence and discrimination.

• Arrest Records: Using arrest information alone to deny a job can be risky for employers. Arrests without convictions don’t reliably indicate wrongdoing.

• Pending Charges: Employers may legally consider pending charges if they’re relevant to the role. For instance, a pending embezzlement charge might be a red flag for a job handling finances.

Many companies follow the EEOC’s guidance, which emphasizes individualized assessments rather than blanket policies.

What Are Your Rights Regarding Pending Charges and Arrest Records?

If you have a pending charge or arrest record, you still have rights:

1. Fair Credit Reporting Act (FCRA) Protections: If an employer uses a third-party background screening company, you’re entitled to: Written notice and consent before the background check. A copy of the report and an opportunity to dispute inaccuracies before adverse action.

2. State Protections: Some states have "ban the box" laws preventing employers from asking about criminal history until later in the hiring process. Others limit reporting of arrests that didn’t lead to charges.

3. Dispute Errors: If your report incorrectly lists dismissed charges as pending, you can dispute the information with the background check company.

   
   

How to Handle Pending Charges or Arrest Records in Job Applications

If you know pending charges or past arrests might come up, here are some strategies:

• Be Honest (When Required): Lying on an application can be worse than the pending charge itself. Answer truthfully if asked, but stick to the facts.

• Explain Context: Prepare a brief, honest explanation highlighting rehabilitation efforts, dropped charges, or lack of conviction.

• Know Your Rights: Research your state’s laws on what employers can ask or consider.

• Seek Legal Help: If you believe you were unfairly denied due to a pending charge or arrest, consult an employment or criminal law attorney.

Can Pending Charges or Arrest Records Be Removed?

In some cases, yes:

• Expungement: Certain arrests and charges can be expunged (erased) from your record if they didn’t result in conviction or meet specific criteria.

• Sealing: Some states allow sealing records from public view.

• Waiting Periods: After a certain number of years, non-conviction records might no longer appear on reports, depending on state law.

Consult a legal professional for options specific to your situation.

Best Practices for Employers

Employers can reduce legal risk by:

1. Following EEOC Guidelines: Use individualized assessments, not blanket exclusions.

2. Considering Job Relevance: Focus on whether the pending charge or arrest relates to job duties.

3. Being Consistent: Apply policies uniformly across all applicants.

4. Providing Opportunity for Explanation: Allow candidates to clarify their record before making adverse decisions.

Final Thoughts

Understanding the difference between pending charges and arrest records is vital in the hiring process and beyond. For individuals, it helps manage expectations and rights during background checks. For employers, it ensures fair and legally compliant hiring practices.

Pending charges and arrests don’t define guilt. They’re simply parts of a legal process. Knowing how they’re treated in background checks—and what protections exist—can empower both applicants and employers to navigate the process responsibly.