Employers conduct pre-employment background checks to protect workplace safety and avoid negligent hiring liability. A common component of the employment background screening process is looking for any disqualifying criminal convictions that an applicant has on their record.
However, a major question arises when an applicant faces criminal charges that are still going through the court process when the employer runs a background check.
Whether or not a pending criminal charge will show up on a background check in Minnesota depends on the type of search, state laws, and how far along the case is in the legal process.
What are Pending Criminal Charges?
A pending criminal charge, as the name suggests, means you have been arrested and accused of a crime, but the case has not yet been resolved through a plea bargain or trial. The prosecutor has likely filed formal charges against you in court, but the case is still ongoing.
Some reasons a criminal charge may remain pending include:
- Prosecutors needing more time to investigate the case and gather evidence before proceeding
- Questions about whether you or someone else actually committed the crime
- Potential constitutional violations by police during the arrest that could lead to dismissed charges
- Prosecutors deciding whether the right charges were filed or if new charges need to be added
So, in summary – a pending charge means you are currently facing accusations of a crime that have not yet been settled or proven in court.
Can Pending Charges Show Up on Background Checks in Minnesota?
Most employers can expect to see pending felony charges on a Minnesota background check, even if the charges are just recently referred by the police and the applicant is not yet formally charged in court.
For serious criminal allegations, prosecutors are responsible for deciding whether to file formal charges in court, offer a plea agreement, or eventually dismiss the case if the evidence is weak. This process can sometimes take several weeks or longer to reach a resolution through a plea agreement or trial verdict.
So, in most instances, Minnesota employers should expect to see pending charges for several weeks or more after the alleged incident, even if the charges end up dismissed down the road. However, employers should individually assess each applicant carefully, as even a pending charge does not automatically mean an applicant is unfit for employment under Minnesota law.
Why Wouldn’t Pending Charges Show Up?
In some cases, a pending criminal charge may not show up on a Minnesota background check report for a few key reasons:
- The charges are in a different county or state that does not report records to Minnesota databases. Each state has different laws and procedures for sharing pending criminal records with other states.
- The applicant was arrested for an alleged crime, but prosecutors have not yet filed formal charges in court. This can happen when prosecutors need more time to investigate before deciding whether charges are appropriate.
- The employer only runs a state-level check that does not search county records where charges may be filed. Expanding a background check to include county searches is important for a comprehensive view of an applicant’s full criminal history.
- Prosecutors ultimately dismiss the charges or the applicant is acquitted at trial. However, it can take weeks or months for databases to reflect the updated case disposition after dismissal or acquittal.
An experienced criminal defense attorney can help proactively protect your rights and future employment prospects if you are facing criminal charges.
Are Employers Allowed to Use Pending Charges in Hiring?
The Fair Credit Reporting Act (FCRA) places a seven-year restriction on the reporting of the following types of information for positions paying less than $75,000:
- Arrests and criminal charges that did not result in conviction
- Convictions that have been dismissed, expunged, or sealed
- Civil lawsuits, judgments, and bankruptcies
However, convictions that have not been expunged or sealed can be reported regardless of how long ago they occurred.
While employers can view pending charges, federal and Minnesota employment discrimination laws prohibit discriminatory hiring practices. Employers should assess applicants individually and may not have an automatic policy of rejecting applicants with criminal records. Doing so could violate federal laws if the policy disproportionately impacts certain protected classes.
Consulting a Criminal Defense Attorney on Your Rights
Suppose you are facing pending criminal charges and searching for a job. In that case, an experienced criminal defense lawyer can advise you on your legal rights and strategies to mitigate damage to your reputation and future employment prospects.
Where the law allows, criminal charges that are dismissed or resolved favorably should be sealed or expunged from public records.
Let Martine Law Fight For You
Our criminal defense lawyers at Martine Law PLLC have extensive experience representing clients facing all types of criminal allegations in Minnesota.
If you are struggling with pending charges while trying to start a new job or career, do not go through it alone. We can help protect your rights, achieve the best possible outcome in your case, and develop a strategy for moving forward.
Contact us now to learn how we can help.
