What States Prohibit Pending Charges on a Background Check?

Knowing which states prohibit pending charges on a background check is important for both employers and job seekers. Pending charges are criminal allegations that have been filed but are not yet resolved in court. How these charges appear on a background report depends on state laws, federal rules, and the type of background check being used.

Some states limit or restrict how pending charges can be reported or used in hiring decisions. Understanding these rules can help employers follow the law and give job seekers a fair chance during the hiring process.

Understanding Pending Charges

Pending charges are criminal allegations filed by a prosecutor that are still moving through the legal process. The person facing these charges has not yet been proven guilty. Common examples include drug possession, theft, fraud, and certain violent crimes.

A case is considered pending until the court reaches a final decision. This can happen through dismissal, a plea agreement, or a verdict. Until then, the charges remain active, and the outcome is still undetermined.

How Pending Charges Differs from Convictions and Arrest Records

Pending charges, arrests, and convictions each carry different legal meanings and reporting rules. Understanding these differences helps job seekers and employers interpret background checks accurately.

• Arrest records: An arrest without a conviction. Some states limit how arrest records appear in background check reports.
• Pending charges: Filed cases that have not reached a verdict. These may appear on criminal background checks depending on state laws and the type of search.
• Felony convictions and misdemeanor convictions: Final judgments. These are treated differently from pending charges and arrests.

How Background Checks Report Pending Charges

Employment background checks often include:

• Criminal record check (county, state, federal)
• Multi-jurisdictional searches
• Employment history and education verification
• Professional licenses
• Driving history (if job duties involve driving)

County checks tend to show the most current court activity. State and federal searches can lag behind county reporting. Differences between the reporting agency, the court’s schedule, and the court system’s update cycle explain most timing gaps.

Factors that Affect Reporting Pending Charges

Several factors can affect whether pending charges are reported. State and local laws often set limits on what can be disclosed, with some states restricting the reporting of certain types of pending charges. In some cases, only pending felony charges are reported, while misdemeanors may be excluded from background checks or official records.

The scope of the search also plays a role, as county, state, and federal databases may contain different information. Additionally, how quickly a court updates its records can impact whether pending charges appear at the time of the search. Delays in reporting or system updates may result in incomplete or outdated information.

Why Some States Restrict Pending Charges

States use laws aimed at fair hiring practices and anti-discrimination laws so job applicants are not disqualified based only on unresolved legal issues. Many rules push any review of criminal history past a conditional job offer and require employers to conduct individualized assessments tied to the job position and job duties. The Equal Employment Opportunity Commission (EEOC) advises against blanket rules that disqualify applicants based on arrests or other non-conviction data.

Federal Rules that Shape Employers’ Use of Pending Charges

These federal rules and fair hiring models guide how employers handle pending charges during hiring. They promote accuracy, fairness, and equal opportunity by setting clear steps for background checks and limiting when criminal history can be considered.

• Fair Credit Reporting Act (FCRA). Before using a background report to deny employment or take other adverse action, an employer must provide the report and “A Summary of Your Rights Under the FCRA,” then wait to let the person dispute errors. This applies when using a background check company or other consumer reporting agencies.
• EEOC guidance (Title VII). Treat similar applicants the same, avoid policies that screen out people based on non-convictions, and use job-related criteria.
• Ban the Box / Fair Chance Act models. Many jurisdictions delay criminal history checks until after a conditional job offer, then require an individualized review.

Private Sector Employers vs. Public Sector

Public sector employers often face stricter timing rules when it comes to asking about pending charges or criminal history. These rules may limit when and how such questions can be asked during the hiring process. In many cases, public employers must wait until later stages of recruitment before making any inquiries.

Private sector employers are commonly barred from asking about criminal records or history early in the hiring process. Instead, they must follow specific steps after extending a conditional job offer. These steps help ensure fairness and compliance with applicable laws.

Employer Compliance Checklist

Use this step-by-step list when a report shows pending charges:

1. Review company policy to confirm it aligns with federal and state laws, ban the box laws, and local rules.
2. Verify the record: match identity, court, case status, and the reporting agency source.
3. Consult legal counsel before moving ahead if the role is sensitive or involves professional licenses.
4. Conduct individualized assessments tied to the job position and job duties. Consider the offense type, time since the event, and role risk. EEOC guidance supports this approach.
5. If you decide to deny employment or change an offer, follow FCRA steps: pre-adverse notice with the report and rights summary; allow time to dispute; then issue final notice if you keep the decision.
6. Document your reasoning to protect the company’s reputation and show consistent, applicant-based decision-making across similar roles.

Guidance For Job Seekers With Pending Charges

Job seekers with pending charges should start by checking their record for accuracy using court portals and their state’s criminal record repository. It’s also important to understand expungement or sealing options that may apply once charges are resolved or dismissed. Keeping organized paperwork that shows the case status or outcome can be helpful during the hiring process.

If asked about pending charges after receiving a conditional job offer, be prepared to explain the facts clearly and honestly. Those facing licensing or immigration concerns should seek guidance from a lawyer or legal aid. Taking these steps can help protect your opportunities and ensure you present accurate information to potential employers.

How Long Do Pending Charges Appear

Pending charges can show up on a record as soon as the prosecutor files the case. The length of time they remain visible depends on several factors, including the court’s schedule, any local backlog, and the pace of the legal process. Delays can also occur due to motions, evidence discovery, and plea negotiations that extend the timeline.

A case may end in dismissal, a plea agreement, or a trial verdict. Even after the case concludes, background check records may take time to update. If a record still shows pending charges after resolution, it’s best to follow up with the court clerk or the background check company to ensure the information reflects the final decision.

When Do Cases Resolve

The timeline for resolving a case varies widely depending on the charges, complexity, and jurisdiction. Some cases may conclude within weeks if there’s a quick plea agreement, while others can take months or even years when trials or extensive investigations are involved. Factors like court backlog, availability of witnesses, and legal motions also affect how quickly a case moves forward.

Cases typically resolve through one of three outcomes: dismissal, a negotiated plea, or a trial verdict. Each resolution triggers the process of updating court and background check records. Staying in contact with your attorney or the court can help you track the status and know when the case is officially closed.

Conclusion

Knowing which states prohibit pending charges on a background check helps employers make lawful hiring decisions and allows job seekers to better prepare for the process. State laws, federal rules, and local regulations all influence what appears on a background report and how it can be used. Both employers and applicants benefit from staying informed and ensuring records are accurate.

If you need accurate and compliant employment background checks or guidance on handling pending charges, Sapphire Check can help. Our team provides clear, reliable reports and support to ensure your hiring process meets legal requirements. Contact us to learn more and schedule today.

FAQs

Do pending charges show up on a background check?

Yes, pending criminal charges, those filed by a prosecutor but not yet resolved, often appear on criminal background checks. Visibility depends on the type of check (county, state, or federal) and how quickly court records are updated.

Which states prohibit employers from considering pending charges?

Several states restrict how employers use pending charges in hiring decisions. Many require a conditional job offer before considering criminal history.

What is “Ban the Box” and how does it relate to pending charges?

“Ban the Box” laws delay criminal history questions until later in the hiring process, commonly until after a conditional offer. This helps protect job seekers with unresolved legal issues like pending charges.

How long do pending charges stay visible on background checks?

Pending charges appear as soon as they are filed, but how long they remain visible depends on the court’s schedule, case complexity, and local backlogs. They may persist for weeks, months, or even years, depending on the resolution type.

Can employers automatically deny employment based on a pending charge?

Employers should not automatically deny a candidate based solely on pending charges. Federal law (FCRA) mandates a pre-adverse action notice, and EEOC guidance calls for individualized assessments focused on job relevance before taking adverse action.