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Pending Criminal Cases Can Provide Valuable Information

January 28, 2025 posted by Steve Brownstein

While it might seem counterintuitive to consider pending cases, as they haven't resulted in a conviction, there are several reasons why they can be valuable information in an employment background check:

1. Potential Risk Assessment:

• Nature of the charges: Pending charges, especially those related to violence, theft, or dishonesty, could indicate potential risks for certain roles, especially those involving vulnerable populations, finances, or sensitive information.
• Severity of the alleged offense: Even if not convicted, the seriousness of the pending charge can raise concerns about an applicant's judgment and potential behavior in the workplace.
• Relevance to the job: A pending charge directly related to the job's duties (e.g., a DUI for a delivery driver) is more relevant than an unrelated charge.

2. Due Diligence and Liability:

• Employer responsibility: Employers have a duty to create a safe work environment. Ignoring pending charges could be seen as negligence if an incident occurs later related to that charge.
• Negligent hiring lawsuits: Employers can be held liable for negligent hiring if they fail to conduct adequate background checks and an employee harms someone on the job.
• Reputation and public image: Hiring someone with serious pending charges could damage a company's reputation, especially if those charges become public knowledge.

3. Fairness and Informed Decision-Making:

• Balanced assessment: Pending charges should be considered alongside other factors like the applicant's qualifications, experience, and references.
• Open communication: Employers should discuss pending charges with the applicant, allowing them to explain the situation and provide context.
• Individualized assessment: The nature of the job, the severity of the charge, and the applicant's overall profile should all be considered before making a hiring decision.

Important Considerations:

• Legal compliance: Employers must follow relevant laws and regulations regarding the use of criminal history information in hiring decisions, including those related to pending charges.
• Accuracy and context: It's crucial to verify the accuracy of pending charge information and consider the context of the case before making any decisions.
• Potential for bias: Employers should be aware of potential biases and avoid making assumptions based solely on pending charges.

In conclusion: While pending charges should not be the sole determinant in hiring decisions, they can provide valuable information for employers to assess potential risks, fulfill their due diligence, and make informed choices that protect both the company and its employees.