What States Prohibit Pending Charges on a Background Check?
Navigating pre-employment screening while dealing with an open court case creates intense anxiety for job candidates. While federal law under the Fair Credit Reporting Act permits reporting pending charges, a growing number of states and municipalities have enacted strict clean slate and Ban the Box laws that limit or outright prohibit employers from considering non-conviction open charges during hiring evaluations.
The Legal Distinction Between Convictions and Pending Charges
In American jurisprudence, the constitutional presumption of innocence establishes that an individual accused of a crime remains innocent until proven guilty beyond a reasonable doubt in a court of law. However, the commercial background screening industry operates under distinct statutory standards that historically allowed consumer reporting agencies to report both convictions and active, pending court cases.
A pending charge represents an ongoing criminal prosecution where an indictment, information, or formal complaint has been filed by a district attorney, but no final judgment, dismissal, or acquittal has occurred. Because the matter remains unresolved, reporting an open charge introduces severe reputational prejudice into employment decisions.
State employment regulations fall across a spectrum ranging from total prohibition of non-conviction inquiries to conditional consideration allowed only after formal offers. The comparison table below highlights state-by-state statutory restrictions on reporting and considering pending criminal charges.
| State / Jurisdiction | Pending Charge Reporting Rule | Statutory Framework | Employer Restriction Level |
|---|---|---|---|
| California | Prohibited until conditional offer; must assess job nexus | Cal. Gov. Code Section 12952 (Fair Chance Act) | Strict: individual assessment required |
| New York | Allowed only if direct relationship to job exists | NY Correction Law Article 23-A | Moderate-Strict: written justification mandated |
| Illinois | Pending arrests without conviction strictly restricted | Illinois Human Rights Act (775 ILCS 5) | Strict: substantial job relationship required |
| Massachusetts | Arrests without conviction cannot be requested or used | Mass. Gen. Laws ch. 151B Section 4 | Strict: employers barred from asking about open arrests |
| Hawaii | Conviction records only after conditional offer; 7-year cap | Hawaii Rev. Stat. Section 378-2.5 | Very Strict: pending matters excluded from inquiries |
| Texas | FCRA 7-year reporting applies; no state ban on pending | Texas Labor Code Ch. 52 | Permissive: employers may evaluate pending filings |
Under the federal Fair Credit Reporting Act (15 U.S.C. Section 1681), consumer reporting agencies are barred from reporting non-conviction arrest records older than seven years. Crucially, however, active pending charges are treated by federal courts as ongoing matters exempt from the standard seven-year limitation, allowing agencies to report them unless state laws say otherwise.
Recognizing the fundamental unfairness of denying individuals livelihoods based on unproven allegations, progressive state legislatures have enacted targeted statutory shields. These state-level protections override baseline federal allowances, curtailing employer access to arrest dockets.
Understanding whether your state limits or prohibits consideration of pending charges is crucial when navigating career transitions or executive hiring evaluations.
States with Strict Prohibitions and Fair Chance Limitations
Several forward-thinking states have established rigorous statutory barriers to protect job applicants from automatic disqualification based on pending charges.
California represents the gold standard of applicant protections under the California Fair Chance Act (Government Code Section 12952). Under this statute, private employers with five or more employees cannot inquire about criminal history or run background checks until after a conditional offer of employment has been extended. Even then, an employer cannot deny employment based on a pending charge without conducting a rigorous individualized assessment proving direct job-related risk.
Federal Fair Credit Reporting Act provisions interact with state clean slate initiatives to dictate reporting timeframes and employer liabilities. Review key regulatory mechanisms governing consumer reporting agency compliance.
| Regulatory Body | Governing Standard | Reporting Window | Penalties for Violation |
|---|---|---|---|
| Federal Trade Commission / CFPB | FCRA 15 U.S.C. Section 1681c | Pending charges reported without 7-yr cap | Civil statutory damages and fines |
| EEOC Guidance | Title VII Disparate Impact Standard | Arrests alone cannot justify non-hire | Federal administrative lawsuits |
| State Labor Departments | State Fair Chance Acts | Restricted to post-conditional offer | State civil penalties and back-pay awards |
| Local Civil Rights Commissions | Municipal Ban the Box Ordinances | Complete ban on preliminary record checks | Revocation of city vendor licenses |
In Massachusetts, General Laws Chapter 151B Section 4 makes it unlawful for employers to request information regarding any arrest or criminal prosecution that did not result in a conviction. Employers cannot penalize applicants for failing to disclose open arrest records on initial application paperwork.
Hawaii enforces one of the most applicant-protective statutes in the nation under Hawaii Revised Statutes Section 378-2.5. Employers can only inquire into criminal history after a conditional job offer has been tendered, and the inquiry is explicitly restricted to convictions that occurred within the past seven years for felonies and five years for misdemeanors, entirely insulating pending matters.
In Illinois, the Illinois Human Rights Act was substantially amended to prohibit employers from using criminal history, including arrest records and open charges, unless there is a substantial relationship between the charge and the specific employment sought.
The Equal Employment Opportunity Commission Guidance on Arrest Records
Even in states without explicit pending charge prohibitions, federal anti-discrimination law provides significant protection against arbitrary job denials.
The Equal Employment Opportunity Commission (EEOC) issued comprehensive enforcement guidance under Title VII of the Civil Rights Act of 1964 regarding the use of arrest records in employment decisions. The EEOC determined that because an arrest does not establish criminal conduct, an exclusion based solely on an arrest or pending charge is unlawful unless the employer independently investigates the underlying conduct.
Under the EEOC framework, an employer cannot rely on the mere existence of a pending charge as grounds for disqualification. Instead, the employer must demonstrate that the conduct alleged in the charge is both job-related and consistent with business necessity.
Employers are legally obligated to assess three core factors, commonly known as the Green factors: the nature and gravity of the offense, the time that has passed since the incident, and the specific duties of the position sought.
Failure by an employer to perform this individualized inquiry exposes them to federal disparate impact lawsuits and substantial administrative financial liabilities.
Pre-Adverse Action Notices and Candidate Dispute Rights
Federal and state consumer protection statutes provide formal procedural safeguards when an employer intends to deny employment based on background check findings.
Under Section 604(b) of the FCRA, before an employer takes adverse action—such as rescinding a conditional job offer—they must provide the candidate with a Pre-Adverse Action Notice. This notice must include a complete copy of the background check report and a written summary of the consumer rights under the FCRA.
Candidates are entitled to a mandatory waiting period, typically five to ten business days, to review the report, identify reporting errors, and submit formal disputes to the background screening company.
If the background report contains inaccurate docket records, dismissed counts improperly flagged as pending, or charges belonging to an individual with a similar name, the consumer reporting agency must re-investigate and resolve the dispute within thirty days.
Utilizing this statutory window allows candidates to present legal proof of dismissals, explain pending circumstances, or submit professional character references before an employment decision becomes final.
How to Handle Pending Charges During Job Screening in 4 Steps
Follow this strategic roadmap to protect your employment rights and verify compliance with state background screening statutes.
Identify Your State and Municipal Ban the Box Rules
Review local Fair Chance ordinances in your jurisdiction to verify whether employers are legally barred from inquiring about arrests or pending matters before extending a conditional job offer.
Request a Copy of Your Pre-Employment Screening Report
Exercise your Fair Credit Reporting Act right to obtain a copy of the background check directly from the screening agency to confirm reported charge accuracy.
Submit a Written Dispute for Non-Compliant Reporting
If a consumer reporting agency improperly includes sealed, non-conviction, or legally barred pending matters, file an immediate formal dispute under FCRA Section 611.
Provide Individualized Assessment Documentation
Present evidence of professional rehabilitation, character references, and job relevance justifications to the employer to counter adverse hiring determinations.
Frequently Asked Questions (9 Questions Answered)
Q1: Can an employer see pending charges on a standard background check?
Yes; unless state or municipal laws prohibit it, most commercial background checks report active, unresolved criminal charges filed in county or state courts.
Q2: Does Ban the Box protect against pending criminal charges?
Ban the Box laws prevent employers from asking about criminal records on initial job applications, delaying background screening until after an initial interview or conditional job offer.
Q3: Can an employer fire you if you are charged with a crime while employed?
In at-will employment states, employers can generally terminate employment over pending charges unless union contracts, civil service protections, or state anti-discrimination laws protect the worker.
Q4: How long does a pending charge stay on your background check?
A pending charge remains visible on background checks for as long as the criminal case remains active and unresolved in court, exempt from the FCRA 7-year non-conviction limit.
Q5: What should you say if asked about pending charges in an interview?
If the jurisdiction legally permits the question, answer truthfully by stating that the matter is active, you maintain your innocence, and you look forward to a complete legal resolution.
Q6: Can an employer deny you a job for a pending charge that gets dismissed?
If a charge is dismissed before the background check completes, reporting or using it as grounds for disqualification violates FCRA regulations and state Fair Chance statutes.
Q7: Do healthcare and education jobs have exceptions for pending charges?
Yes; healthcare, childcare, eldercare, law enforcement, and financial security positions have statutory exemptions allowing mandatory exclusions for specific pending violent or fraud offenses.
Q8: What is an individualized assessment under Fair Chance laws?
It is a required evaluation where employers must weigh the specific facts of the alleged offense against job duties, applicant work history, and character references before taking adverse hiring action.
Q9: Can a background check company be sued for reporting an illegal pending charge?
Yes; if a consumer reporting agency violates state laws or reports inaccurate, sealed, or improperly categorized records, applicants can file lawsuits for statutory and punitive damages.
Final Thoughts & Key Takeaways
In conclusion, understanding what states prohibit pending charges on a background check? provides essential clarity, practical strategies, and actionable advice. By incorporating these foundational insights, adhering to verified safety guidelines, and following structured best practices, you ensure reliable, long-term outcomes while preventing common mistakes. Stay informed, consult certified professionals when needed, and maintain consistent quality care.