Which States Restrict Pending Charges in Background Checks?

Overview of background checks in hiring

How Background Checks Shape Hiring Decisions

Background checks have become a standard part of the hiring process for most employers in the United States. These checks help organizations assess an applicant’s criminal history, employment background, and other records to make informed decisions. Employers consider background checks essential for protecting their workplace, customers, and reputation. However, the use of criminal records and pending charges in employment decisions is a complex issue, shaped by a patchwork of state laws and evolving best practices.

When conducting a background check, employers may review criminal records, conviction records, and even arrest records. The goal is to identify any red flags that could impact job performance or workplace safety. Yet, not all criminal background information is treated equally. For example, some states have laws that restrict the use of pending charges or non-conviction records in employment decisions. These differences can create challenges for employers, especially those operating in multiple states.

In recent years, "ban the box" laws have gained traction across the country. These laws limit when and how employers can ask about an applicant’s criminal record during the hiring process. The intent is to give individuals with a criminal history a fair chance at employment, reducing barriers to reentry and promoting workplace diversity. Understanding the nuances of these laws is crucial for HR professionals and private employers alike.

For those interested in how workplace culture and legal compliance intersect, exploring addressing bullying in a hostile work environment offers valuable insights into creating a fair and inclusive hiring process.

As we move forward, it’s important to understand what pending charges are and why they matter in the context of employment background checks. This sets the stage for examining which states restrict the use of pending charges and how these restrictions impact HR transformation efforts.

What are pending charges and why do they matter?

Understanding Pending Charges in Employment Screening

When employers conduct background checks as part of the hiring process, they often review an applicant’s criminal history, including any pending charges. A pending charge refers to a criminal accusation that has been filed but has not yet resulted in a conviction or acquittal. This means the legal process is still ongoing, and the individual has not been found guilty or innocent. Pending charges can appear on criminal background checks, depending on the state and the type of check performed. For many employers, the presence of a pending charge raises questions about the applicant’s suitability for the job, especially in roles involving trust, safety, or sensitive information. However, it’s important to remember that a pending charge is not a conviction, and the applicant is presumed innocent until proven guilty.

Why Pending Charges Matter in Hiring Decisions

Employers consider pending charges for several reasons:

• Risk management: Employers want to minimize risks to their business, employees, and customers. Pending criminal charges may signal potential future issues, depending on the nature of the alleged offense.
• Compliance with laws: Some industries are required by law to consider criminal records, including pending charges, when making employment decisions.
• Fairness and equity: There is an ongoing debate about whether it is fair to use pending charges in employment background checks, since these charges have not resulted in a conviction. This has led to the development of ban the box laws and other state-specific regulations.

Employers must navigate a complex landscape of state laws regarding the use of pending charges in background checks. Some states restrict the use of pending charges in employment decisions, while others allow employers to consider them. This patchwork of laws can create challenges for multi-state employers and HR professionals. For more on how non-conviction records, such as pending charges, can impact the workplace, you can read about examples of non-sexual harassment in the workplace and their implications for HR policies. Employers should also be aware that using pending charges in hiring decisions may increase the risk of discrimination claims, especially if the practice disproportionately affects certain groups. This is why understanding the legal landscape and best practices is crucial for HR transformation.

States that restrict pending charges on background checks

States with Restrictions on Pending Charges in Employment Background Checks

Employers conducting background checks must navigate a complex patchwork of state laws regarding the use of pending charges in hiring decisions. While federal law does not explicitly prohibit considering pending criminal charges, several states have enacted laws to restrict how employers use this information during the employment process.

• California: Employers are generally prohibited from asking about or considering arrests that did not result in conviction, including pending charges, until after a conditional job offer is made. This is part of California's broader "ban the box" law, which aims to give applicants with a criminal history a fair chance at employment (Cal. Gov. Code § 12952).
• New York: State law restricts employers from denying employment based solely on an arrest or pending charge that has not led to a conviction, unless there is a direct relationship between the alleged offense and the job, or hiring would pose an unreasonable risk (N.Y. Exec. Law § 296(16)).
• Hawaii: Employers are not allowed to consider arrest records or pending charges that have not resulted in conviction when making employment decisions (Haw. Rev. Stat. § 378-2.5).
• Illinois: The Illinois Human Rights Act prohibits employers from inquiring about or considering arrest records, including pending charges, in most employment situations (775 ILCS 5/2-103).
• Massachusetts: Employers cannot ask about arrests or criminal charges that did not result in conviction, including pending charges, on initial job applications (Mass. Gen. Laws ch. 151B, § 4(9)).
• New Jersey: The "ban the box" law restricts employers from asking about criminal history, including pending charges, until after the first interview (N.J. Stat. Ann. § 34:6B-14 et seq.).

Many other states have adopted similar "ban the box" laws or specific statutes that limit when and how employers can consider criminal records, pending charges, or arrest records in the hiring process. These laws often apply to both public and private employers, but the details vary by state and sometimes by city or county. Employers operating in multiple states must pay close attention to these differences to ensure compliance. For a deeper understanding of how personality types may impact the way individuals respond to criticism in the workplace—a factor that can intersect with background check policies—see this resource on personality types that struggle with criticism in the workplace. Understanding state-specific laws is crucial for HR professionals and employers to avoid legal risks and promote fair hiring practices. Always consult the latest state statutes or legal counsel, as laws regarding pending charges and criminal background checks continue to evolve.

Implications for human resources transformation

How Pending Charges Restrictions Influence HR Transformation

The way states regulate the use of pending charges in background checks has a significant impact on human resources transformation. As organizations strive to modernize their hiring practices and foster fairer, more inclusive workplaces, understanding these legal nuances is essential. Employers are increasingly expected to balance risk management with equitable hiring. When state laws restrict the use of pending charges, HR professionals must adapt their employment background check processes. This means revisiting policies on criminal history, ensuring compliance with state-specific laws, and updating training for those involved in hiring decisions. These changes often require HR teams to:

• Reassess how criminal records and pending charges are considered during the job application process
• Develop clear guidelines for evaluating applicants with a criminal background or pending charge
• Train hiring managers on the difference between arrest records, convictions, and pending charges
• Implement procedures that align with "ban the box" laws and other fair chance hiring initiatives

The shift towards limiting the use of pending charges in employment decisions reflects a broader movement in HR transformation. It encourages employers to focus on qualifications and potential rather than solely on criminal records. This approach not only reduces legal risks but also supports diversity, equity, and inclusion goals by giving more applicants a fair chance at employment. Ultimately, adapting to these evolving laws is not just about compliance. It is about transforming the role of HR from gatekeeper to strategic partner, helping organizations build stronger, more resilient teams while respecting the rights of all job seekers.

Challenges for multi-state employers

Complexities for Employers Operating Across State Lines

Employers with operations in multiple states face significant challenges when it comes to background checks and pending charges. Each state has its own laws regarding what criminal records, pending charges, or arrest records can be considered during the hiring process. This patchwork of regulations means that a policy compliant in one state may be illegal in another. For example, some states restrict employers from considering pending charges unless there is a direct relationship to the job, while others allow broader access to criminal history. Ban the box laws add another layer, as some states prohibit employers from asking about criminal records on the initial job application, while others have no such restrictions.

• Legal compliance requires constant monitoring of state laws and regulations regarding background checks and pending charges.
• Employers must tailor their employment background screening processes to each state’s requirements, which increases administrative burden and risk of error.
• Multi-state employers may need to train HR professionals on the nuances of conviction records, pending charge disclosures, and local hiring laws.
• Inconsistent practices can lead to claims of discrimination or unfair hiring, especially if applicants believe their criminal record or pending charges were considered unlawfully.

Balancing Fairness and Risk Management

Navigating these differences is not just a legal issue but also an ethical one. Employers must balance the need to protect their business and employees with the rights of applicants who may have pending charges or criminal records. Inconsistent application of background check policies can undermine trust and create barriers to employment for qualified candidates. To address these challenges, employers should develop clear, documented procedures for handling criminal background checks, including how pending charges are evaluated. Consulting legal counsel and leveraging technology to track state-specific laws can help reduce risk. Ultimately, a thoughtful approach to criminal history and employment background checks supports both compliance and a fair hiring process.

Best practices for HR professionals

Building a Consistent and Compliant Screening Process

Employers face increasing complexity when conducting background checks, especially with varying state laws around pending charges and criminal records. To navigate these challenges and ensure fair employment practices, HR professionals should focus on building a process that is both consistent and compliant.

• Stay informed on state and local laws: Laws governing background checks, pending charges, and criminal history differ widely. Regularly review updates to state and local regulations, especially regarding ban the box laws and restrictions on considering arrest records or pending charges before a job offer.
• Standardize your background check policy: Develop clear, written policies outlining how your organization handles criminal background checks, pending charges, and conviction records. Ensure these policies are applied consistently across all applicants and job positions.
• Train hiring teams: Educate recruiters and hiring managers on what information can be considered during the employment background check process. Training should cover the differences between convictions, pending charges, and arrest records, as well as the implications of state-specific laws.
• Use individualized assessments: When a criminal record or pending charge appears, assess each situation individually. Consider the nature of the offense, its relevance to the job, and how much time has passed since the incident. This helps reduce bias and supports fair hiring decisions.
• Communicate transparently with applicants: Inform candidates about your background check process, what records will be reviewed, and their rights under the law. Transparency builds trust and helps applicants understand how their criminal history may impact employment decisions.
• Document your decisions: Keep detailed records of background check results and the rationale behind hiring decisions, especially when pending charges or criminal records are involved. This documentation can protect your organization if hiring practices are challenged.

Leveraging Technology and Third-Party Providers

Many employers use third-party vendors to conduct employment background checks. When selecting a provider, ensure they understand the legal landscape in all states where you operate. Choose vendors who update their processes to reflect changes in law and who can help you filter out information that should not be considered, such as certain pending charges or arrest records.

Promoting Fairness and Inclusion

Adopting best practices in background checks is not just about compliance. It is also about supporting fair employment opportunities for all applicants, including those with a criminal history or pending charge. By focusing on job-relatedness and individualized assessments, employers can reduce barriers for qualified candidates and contribute to a more inclusive workforce. Ultimately, a thoughtful approach to background checks and pending charges helps employers balance risk management with fair hiring, while staying compliant with state and federal laws.