Will Pending Criminal Charges Show Up on My Background Check?

Many North Carolina employers conduct pre-employment background checks to protect workplace safety and their businesses’ reputations. A common component of the employment background screening process involves criminal background checks. These types of background checks can reveal if an applicant has a disqualifying criminal conviction. if you have been charged with a crime but not convicted, you may wonder whether a background check will show a potential employer or your current employer depending on the charges against you.

What is a Pending Criminal Charge?

A pending criminal charge means a defendant has been arrested for an alleged crime, and the prosecutor is reviewing the case. Prosecutors are responsible for deciding what criminal charges a person may face. They do not always follow through with criminal charges referred by the police department.

The prosecutor may decide they do not have enough evidence to bring charges against a defendant and never prosecute the case. In other cases, it can take months for prosecutors to gather evidence and build a case against a defendant before they file the charges in court. some of the reasons why a criminal charge may be pending include the:

  • A lack of sufficiency of the evidence requires the prosecutors to investigate further
  • Questions about whether the defendant or another person may have been the perpetrator
  • Potential errors made by a police officer during a stop, search, and seizure that could have been a violation of the defendant's constitutional rights
  • Charging errors made by the police officer

Prosecutors have a lot of discretion and can decide to dismiss the charge, add additional charges, reduce the severity of the charge, or charge a person exactly as the police have recommended. Generally, when a criminal charge is pending, the prosecutor has filed it, but the prosecutor is still going through the court process. When a charge is pending, it has not been resolved through a plea agreement or trial verdict.

Will an Employment Background Check Show a Pending Criminal Charge?

Unfortunately, a pending criminal charge will appear on most employment background checks. Although people are innocent until proven guilty, pending charges can still hinder their ability to secure employment. Most state laws are similar to California's, and employers can expect to see pending criminal charges on background checks for any level of offense.

Whether or not a pending criminal charge will appear on a background check that a potential employer runs depends on the comprehensiveness of the report. For example, If an employer only conducts a county check, a pending criminal charge in a different county or state will not appear in the background check.

Laws Related to Background Checks That Show Pending Charges

The Fair Credit Reporting Act (FCRA) protects consumers' private information that consumer reporting agencies and employment background checks report. This federal law places a seven-year restriction on the reporting of the following types of information for positions paying less than $75,000 a year:

  • Civil judgments
  • Paid tax liens
  • Arrests not resulting in convictions
  • Civil lawsuits
  • Bankruptcies

Pending criminal charges that have taken place within the last seven years that still have not been resolved can be reported under the Fair Credit Reporting Act. Similarly, convictions that have not been expunged can also be reported regardless of when they occurred. The Civil Rights Act prohibits workplace discrimination against employees based on their protected characteristics.

Per federal regulations, employers should individually assess arrest and conviction information as it relates to an employment position before deciding whether to hire the applicant. This guidance is intended to stop employment discrimination against employees who may have criminal records.

How Much Time Does it Take for Pending Criminal Charges to Show Up?

The answer to this question depends on the type of criminal charge and the type of search an employer conducts. Generally, county-level criminal background checks reflect pending charges first. However, county courts generally only report information to the state intermittently. As a result, a state-level check may not show a pending charge for several weeks or

Facing Criminal Charges in North Carolina? You Need an Experienced Attorney on Your Side

If you are facing criminal charges in North Carolina, your freedom and future could be in jeopardy. In addition to potentially facing penalties like jail time, fines, and a permanent criminal record, facing charges can also hurt your employment and educational opportunities. Working with an experienced criminal defense attorney is crucial. Contact the skilled criminal defense attorneys at Arnold & Smith, PLLC, to schedule a free case evaluation.