Do pending charges show up on a background check? Generally, yes, but not always.
Even when pending charges appear on a criminal background check, there are some limits on how the information can be used against an applicant during an employment or rental background assessment.
Let’s get some more details to help you understand pending charges on background check reports, Do pending court cases show up on a background check? What do pending charges mean, and how to evaluate them?
Do Pending Charges Show Up On A Background Check?
Back to the question; do background checks show pending charges? Whether pending charges show on a background check depends on the type of background check being carried out, its scope, state law, and the type of charge.
Background Check Type & Scope
The scope of a background check might be limited to criminal convictions, or it could be a more in-depth investigation looking for recent arrests and pending charges as well.
Unless the background check includes a comprehensive search of county courthouse records, pending criminal charges against the applicant could be missed.
For example, if the background check only searches the county records for the applicant’s current address, pending charges for alleged criminal offenses reported in other counties won’t be included.
Background check providers use the applicant’s social security number to identify which jurisdictions to search.
Depending on the service offered by the background checking company, county courthouse records will be checked using either an automated or a manual search.
An automated search will miss recent pending charges in county courthouses unable to provide real-time access to their records.
A manual criminal records search involves direct contact with the clerk at the county courthouse and will reveal any pending charges on file.
Read Also: What is a pre-adverse action notice?
Pending Charges & State Law
- Some states don’t allow criminal background check reports to include pending charges.
- Some states allow reporting of pending charge information on criminal background checks, but the information cannot be the sole basis for an employer or landlord to reject an applicant.
- In other states, there aren’t any restrictions on the reporting or use of pending charges information. Unless the use is considered discriminatory.
Types Of Pending Charges
Depending on state law, the reporting of pending charges for misdemeanors on criminal background checks may be prohibited.
In Arkansas, for example, background checks can only report pending felony charges. If this is the case in your state, you’ll only be able to find out whether an applicant has a pending felony charge.
What Is A Pending Charge?
Pending charges can refer to two different things.
No Formal Charges Have Been Filed
A pending charge might refer to an arrest that hasn’t resulted in formal criminal charges yet.
The case is waiting for the prosecutor to finish evaluating the current evidence and decide what charges, if any, to file. A prosecutor may amend the police charges or even decide there’s no case to answer.
Possible reasons an arrest hasn’t resulted in formal criminal charges so far include:
- Insufficient evidence
- Potential Fourth Amendment violations during a police search
- Inadmissible evidence
- Procedural mistakes during an arrest or interrogation
Charges Filed But Outcome Awaiting Determination
A pending charge can also mean an individual has been formally charged, and the case is moving through the court system. The defendant may be awaiting trial or be midway through a trial.
Sometimes a background report records this type of pending charge as “awaiting final disposition”.
In both cases, the subject of the background check has not been found guilty of a crime and should be presumed innocent until proven guilty.
How Long Does It Take For A Pending Charge To Show Up On A Background Check?
When a background check is run on an individual, the system reports the data it has access to. If the county courthouse holding the charge record has an integrated digital records system, pending charges will be online and available to background check companies right away.
In other jurisdictions, which update records manually, it can take anywhere from a few days to a few months for pending charges to be reported to the state record repositories used by background check companies.
A background check provider offering a manual county records search will produce the most up-to-date information.
Pending Criminal Charges And Employment Screening
How should an employer use pending charges background information? Whether you’re running an employment background check on a new applicant, or rescreening a candidate for promotion, you must treat pending charges with caution and only use the information in accordance with the law.
Keep in mind that a pending charge isn’t a guilty verdict. Law enforcement officers sometimes make mistakes.
Check the accuracy of the information. Background checks can report incorrect or out-of-date information.
Look at the nature of the pending charges and determine if the conduct underlying the alleged offense is relevant to the position sought and its duties.
If a careful evaluation isn’t carried out, a refusal to hire an applicant based on pending charges could be discriminatory under “Disparate Impact” legislation contained in Title VII of the Civil Rights Act.
According to the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) advises that “the use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination”.
This guidance is designed to prevent employment discrimination against minorities.
For more information, refer to the EEOC guidance.
Besides the Civil Rights Act legislation, state law may prohibit the use of arrest and pending charges information when making an employment decision.
Some businesses avoid the potential for employment discrimination by putting an application on hold until the pending charges are resolved.
Employers may have a legal duty to pause an application if background checks show the candidate has pending charges. A bank cannot hire a candidate with pending money laundering charges, for example.
How Can Landlords Use Pending Charges Background Check Information?
Pending charges background information can help you form a broader picture of a rental applicant, but the existence of a pending charge alone isn’t grounds to reject an applicant.
How do pending charges affect a rental application?
A major concern for landlords is the ability of their tenants to pay their rent. If a prospective tenant has pending charges and is found guilty, they may face a custodial sentence and be unable to pay rent for the remainder of their tenancy.
Another factor landlords need to consider is the safety of their other tenants and risks to the rental property itself.
If the pending charges on the report are related to a violent offense, drug dealing, fraud, or property damage, this could give rise to a legitimate concern about the suitability of the applicant.
On the other hand, if the pending charges reported are for unrelated offenses, rejecting the applicant based on their alleged conduct could be seen as arbitrary discrimination.
Landlords should have a comprehensive rental policy that details their acceptance criteria. This policy should be consistently applied to background checks for all applicants.
To be certain you’re complying with the applicable Fair Housing laws in your state, an attorney specializing in tenancy contracts should draw up your rental application policy.
Penalties For Incorrect Use Of Pending Charges Background Check Information
When you take adverse action against an individual based on information contained in their background check report, applicants have the right to challenge your decision if they feel their rights have been violated.
In some states, improper use of criminal background check information is a criminal offense. In other states, rejected candidates with evidence of discrimination can file a lawsuit for financial damages.
Other options for redress include filing a complaint with the Equal Employment Opportunities Commission and the Federal Trade Commission.
Employers and landlords should make sure their screening policies and use of background check reports comply with all relevant state and federal laws.
Do pending charges show on background check? In general, pending charges will show on a background check unless the charges are too recent for an automated background search to catch.
A background check which includes a manual search of county courthouse records will reveal pending charges not yet reported to the state record repository.
Pending charges on a background check don’t tell you if the individual is guilty of an offense and care should be taken to use pending charge information in a lawful manner.
It’s sensible to seek legal advice to make sure your employment or rental screening policy is fair and non-discriminatory.
Charles Greg is the Co-Founder, Author, & Head Developer behind RentingtoFelons.org
With a lifelong passion for humanity.