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Will Pending Criminal Charges Show on a Preemployment Background Check?

by Mackenzie Maxwell ; Updated October 29, 2018

When you bring new talent into your business, you want to be sure they have the skills and background to succeed. In many companies, this means knowing about each candidate's criminal history. Any decent background check will show convictions, but will they let you know if an applicant has pending charges or warrants?

It depends. As unsatisfying as that can be for an employer, you may not see all warrants and pending charges on a background check. The agency you choose, the location of the alleged crime, the nature of the charges and your location affect what you can see. Furthermore, you may not be able to use these charges against a candidate, even if you can see them.

Choose a Criminal Record Check

If you want to see pending charges, warrants, arrests without convictions and convictions on a background check, you need to ensure that your service provider offers that. Some companies only offer basic background checks or do more complete investigations for a premium. Ask your representative before you choose the best plan for you.

The Nature of the Crime

Not all crimes are equal. For example, someone with an assault conviction and someone with misdemeanor theft charges would require different treatment. Some states and counties do not report misdemeanor offenses, regardless if they are pending or convicted.

Other jurisdictions report misdemeanor convictions but do not report charges or warrants. Some areas don't report charges that the state dropped or that ended in a "not guilty" verdict. The place where the incident took place and your location both affect what you can see.

Cases that go through juvenile criminal courts or civil courts may not show up at all. Again, this depends on your jurisdiction and that of the charge in question.

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Some Things Slip Through

Sometimes a warrant for arrest or pending charges will not show up on even the most expensive online background check. The investigator may not search certain areas if the candidate has no history of living there. However, they could have conducted a hit-and-run or something like that far away from home.

Some jurisdictions do not report convictions from a set number of years in the past. Others won't report pending charges or warrants. While background checks can be quite thorough, it's important to remember that they don't always show a full history.

Consider Federal Regulations

Once you conduct a background check and see charges or convictions, your first instinct may be to reject the candidate outright. However, this is not the ethical or legal way to approach the situation. You need to comply with federal regulations to avoid lawsuits.

The federal Fair Credit Reporting Act (FCRA) addresses issues related to employment and criminal records. Many background-check companies ensure that they comply with this regulation on their end. However, you still have obligations as the employer.

To fully comply with the law, you must get consent for the criminal checks and give candidates the chance to see the reports. This may allow them to correct inaccuracies and save you from eliminating a great candidate because of a mistake.

Pass on Candidates Carefully

If you choose to decline an application because of a candidate's background, you need to justify it within legal bounds. The federal Equal Employment Opportunity Commission requires employers to consider the nature of the job, the time that passed since the crime and the job requirements before deciding against a candidate with a criminal record.

For example, consider a candidate with a record that shows a small marijuana possession. The charge was six years ago, and you know that the candidate was in college at the time. The position is a sales job, and he has plenty of experience in the area. The applicant also has a clean drug test.

The EEOC does not allow employers to discriminate against a convicted person if the conviction would not keep the person from being a "responsible, reliable and safe" employee. If you refuse the person in this example, you could be in violation of the EEOC's Title VII.

On the other hand, consider you are hiring for a child care worker. The background check reveals domestic violence charges from two years ago. You can certainly make a case that you cannot hire this person for this job. Write the reasoning with specifics and outline how the charges relate to the nature of the job.

About the Author

Mackenzie Maxwell is a small business owner. She has two businesses, including a martial arts gym in Texas. Prior to building her own, Mackenzie worked with small businesses and organizations to create effective marketing - from churches to insurance companies. She enjoys helping businesses with the startup spirit grow. Mackenzie has been writing in this field for six years and shows no signs of slowing.

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