Do Arrests Show Up on Background Checks? What Employers Need to Know About Pending Charges

Arrests and pending criminal charges sit in a legal gray area in background screening. A conviction is a final determination by a court. An arrest is only an allegation, not a finding of guilt. Yet arrests and pending charges often show up in background checks, and how employers may legally use that information is tightly regulated.

Do Arrests Show Up on Background Checks?

Yes, in many cases. It depends on the jurisdiction and the type of check used.

Arrests create records in county, state, and sometimes federal databases. A comprehensive criminal background check that searches these records directly may surface arrest records alongside conviction records. Many background check database providers include arrest records in their results.

Whether this information can legally be considered in employment decisions is a separate question.

Pending Charges on Background Checks

Pending criminal charges are cases that have been filed but not yet resolved. They typically appear as open court records. A background check searching active court filings at the county or state level will likely find pending charges.

Employers must be careful with how they use this information. A pending charge is not a conviction, and the presumption of innocence is a core legal principle. Using a pending charge as the basis for an adverse employment decision without careful legal review creates significant exposure.

What the Law Says About Arrests Without Conviction

The FCRA restricts consumer reporting agencies from reporting arrests, indictments, or convictions of crimes that predate the report by more than seven years. There are exceptions for positions with a salary above a certain threshold.

Many states have enacted specific laws limiting or prohibiting employers from considering non-conviction arrest records in hiring decisions:

• California prohibits employers from asking about or using arrests not leading to conviction, with narrow exceptions
• New York has detailed rules restricting use of arrest records and requires individualized assessment of any criminal history
• Many other states have similar restrictions that vary in scope

The EEOC has also issued guidance cautioning that policies excluding applicants based on arrest records, without any resulting conviction, may violate Title VII as having disparate racial impact.

The Difference Between an Arrest and a Conviction

An arrest means law enforcement had probable cause to detain someone. A conviction means a court found the person guilty, or the person entered a guilty plea. These are very different things.

A background check that lists an arrest without distinguishing whether it resulted in a conviction, dismissal, or acquittal is providing incomplete information. A thorough background investigation, as opposed to a database search, will identify the disposition of each arrest record found.

Do Police Reports Show Up on Background Checks?

Police reports themselves are not typically part of a standard background check. What shows up is the court record if charges were filed, not the underlying police report. However, investigative background checks conducted by licensed investigators may access incident reports and related documentation through appropriate channels.

Best Practices for Employers

For employers, the practical guidance is:

1. Do not automatically exclude candidates based on arrests without conviction. This creates legal exposure and ignores the principle that an arrest is not a finding of guilt.

2. Make sure your background check provider correctly identifies dispositions. A list of arrests without noting which resulted in conviction is not enough for sound decision-making.

3. Apply an individualized assessment to any criminal history, conviction or otherwise. Consider the nature of the offense, the time elapsed, and its relevance to the specific position.

4. Consult with legal counsel when developing or revising your criminal history screening policy, especially if you operate in states with ban-the-box or criminal history restrictions.

How Dispositions Get Lost in Database Screening

A common problem in commercial background checks is the absence of disposition information. National database aggregators pull records from thousands of sources. The update frequency, data quality, and completeness of those sources vary widely. A county clerk may upload arrest records to a state repository promptly, but the later dismissal, acquittal, or sealing of the case may never be transmitted, or may arrive months later.

The result is a background report that shows an arrest from four years ago with no resolution noted. The candidate may have been fully exonerated, had charges dropped by the prosecutor, or completed a diversion program that resulted in the record being expunged. None of that nuance reaches the hiring manager reviewing the report. Without direct court-level verification, the employer is left guessing, and guessing wrong carries real legal risk.

This is why a professional background investigation goes beyond database matches and verifies the current status of each record at the courthouse of origin. When a case shows as pending in a database, the investigator confirms whether it is truly pending, has been adjudicated, or was never actually filed by the prosecutor after the initial arrest booking.

When Arrest Information May Legitimately Be Considered

Arrest records, even without convictions, can lawfully factor into employment or placement decisions in limited situations. Positions involving fiduciary responsibility, vulnerable populations, law enforcement, healthcare, financial services, and certain federally regulated industries often have statutory frameworks that require deeper scrutiny of arrest history.

For example, a financial institution evaluating a candidate for a role handling client funds may be required under FINRA or state banking regulations to review pending charges involving fraud or dishonesty. A school district evaluating a teacher or contractor may have obligations under state education codes to consider pending charges involving children. Hospitals and home health agencies face similar obligations regarding patient-facing roles.

Even in these regulated contexts, the proper approach is not automatic exclusion. It is careful review of the specific charges, their relationship to the job duties, the timing and circumstances, and whether the underlying conduct, if true, would disqualify the candidate under the applicable regulatory standard. Employers conducting executive-level due diligence or vetting candidates for sensitive corporate positions often need this deeper level of analysis. That requires investigative resources beyond a standard database screen.

Arrests in Litigation and Witness Background Research

Employment screening is not the only context in which arrest information matters. Litigators frequently need to evaluate the criminal history of opposing parties, witnesses, and experts. Unlike employment contexts, these uses are generally not constrained by FCRA and EEOC standards, because the purpose is not to make an employment decision.

A civil defendant accused of fraud may have a history of arrests for similar conduct that never resulted in conviction but still bears on credibility or pattern. A witness in a criminal defense matter may have pending charges that create motive to cooperate with the prosecution. A plaintiff claiming emotional distress may have a history of incidents that contradicts the alleged harm.

The same investigative standards apply in these situations: verified court-level research, full disposition information, and documentation that will hold up if introduced or referenced in a proceeding. Our work for law firm clients routinely involves running adversarial party histories that identify not just convictions but also arrests, dismissals, diversions, and sealed matters where legally accessible, with appropriate citation to the source.

Scenarios Where Pending Charges Create Judgment Calls

Consider a common scenario. A company is in late-stage negotiations to acquire a smaller competitor. During pre-acquisition due diligence, the acquirer learns that the target company's CEO has a pending charge for driving under the influence. The matter is unrelated to business operations, involves no injuries, and is expected to resolve with a plea to a reduced charge.

Does this affect the transaction? Probably not directly. It does raise questions about disclosure obligations to lenders, reputational exposure, and whether the CEO should continue in an ambassador role after closing. The answer depends on facts the database search alone cannot provide: the actual charge, the expected resolution, prior history, and context. Only a proper investigation surfaces those facts.

Another scenario: a staffing firm is placing a candidate with a client that requires "clean" backgrounds. The candidate has an arrest from three years ago for a domestic-related offense that was dismissed after the complainant recanted. A surface-level database check flags the arrest. Without the disposition and context, the staffing firm may lose a qualified candidate and expose itself to a disparate impact claim. With full information, the placement can proceed with appropriate disclosure.

Building a Defensible Screening Program

Employers that rely heavily on background screening should document their decision-making framework. A written policy should address how arrests without conviction are handled, how pending charges are evaluated, what individualized assessment looks like in practice, and what adverse action procedures are followed when criminal history affects a decision.

The policy should be reviewed by employment counsel, updated as state laws change, and applied consistently across candidates. Inconsistent application is often where disparate impact claims gain traction, even when the written policy appears neutral. Training hiring managers on how to interpret criminal history reports is equally important. A well-written policy executed poorly in the field provides little protection.

Companies that want to reduce this risk often centralize criminal history review with a small, trained team rather than letting every hiring manager make judgment calls independently. That team works from complete investigative reports rather than raw database output, applies the written framework, and documents the reasoning for each decision.

Getting Accurate, Complete Criminal Records

Whether you are an employer assessing a candidate or conducting due diligence on a business partner, the accuracy and completeness of criminal history research matters. A search that returns only partial records, or that does not distinguish between arrests and convictions, is worse than useless for sound decision-making.

Encyphir's background investigations include direct court-level criminal history research with full disposition information. Corporate clients use our structured workflow for FCRA-compliant employment decisions, and law firms rely on us for adversarial party and witness history with admissible documentation. Contact our team to discuss thorough criminal history screening for your situation.