Facing a pending felony charge while seeking employment causes significant uncertainty. While a pending charge is a major hurdle, it is not an automatic disqualifier for all jobs. Understanding the legal distinctions and the mechanics of the hiring process is crucial for addressing this challenge. This article provides general guidance on navigating the job market with a pending charge, but it is not a substitute for legal advice.
Defining the Pending Felony Status
A “pending felony” is an arrest or formal charge filed by a prosecutor that has not yet reached a final disposition, such as a conviction, acquittal, or dismissal. This status is distinct from a felony conviction, which is a formal finding of guilt. This distinction holds considerable weight in employment law.
Pending charges generally carry fewer automatic legal restrictions than a final conviction because the individual is presumed innocent. However, employers may still view a pending charge negatively due to concerns about liability, workplace safety, or future legal complications.
Employer Rights to Inquire About Pending Charges
The legal framework governing employer inquiries about criminal history involves federal, state, and local laws. Many jurisdictions have “Ban-the-Box” laws, which typically delay inquiries about past convictions until later in the hiring process, often after a conditional job offer. Rules for asking about pending arrests or charges vary significantly and are often less restrictive than those concerning convictions.
Federal guidance from the Equal Employment Opportunity Commission (EEOC) suggests that considering an arrest record must be “job-related and consistent with business necessity.” This means employers should not use a pending charge as a blanket exclusion. Instead, they must assess the conduct underlying the charge and its direct relevance to the specific position’s duties to determine if the applicant is unfit for the role.
What Background Checks Reveal About Pending Cases
A standard pre-employment background check will often reveal a pending felony charge, regardless of whether the employer asks about criminal history on the application. Background check companies, known as Consumer Reporting Agencies (CRAs) under the Fair Credit Reporting Act (FCRA), pull public records, including open court records and arrest logs. Since a pending felony case is active and undisposed, it is considered a current public record and will appear in a comprehensive search.
The FCRA governs how CRAs conduct checks and how employers use the information. While the FCRA restricts reporting older non-conviction information for seven years, this limitation usually does not apply to a charge that is currently pending and open. If an employer decides not to hire an applicant based on the background check results, the FCRA requires them to follow an “adverse action” process, providing the applicant with a copy of the report and a summary of their rights.
Strategies for Finding Employment
A proactive job search strategy can significantly improve employment prospects while a felony case is pending. Focusing on smaller businesses may be advantageous, as they often have less formal hiring processes and may not use the comprehensive third-party background checks common among large corporations. Networking within your community and directly with hiring managers can help shift the focus away from the pending charge and toward your skills and reliability.
Seeking opportunities with non-profit organizations or re-entry programs designed to hire individuals with criminal backgrounds can provide a supportive path. These organizations are often willing to conduct an individualized assessment of the charges and focus on the applicant’s potential. The goal is to secure roles where the pending charge has no direct relevance to the job duties, making it difficult for an employer to establish a “business necessity” for disqualification.
Navigating Disclosure During the Hiring Process
Disclosing a pending felony charge requires a careful communication strategy. If the job application or local law requires disclosure, you must be truthful, as later discovery of dishonesty will lead to immediate disqualification. When disclosing, the explanation should be brief, factual, and minimal, avoiding unnecessary detail or emotional pleas.
The most effective approach is to acknowledge the situation concisely and immediately pivot back to your qualifications, skills, and commitment to the job. You should be prepared to discuss the situation in a manner that demonstrates responsibility and a focus on future goals. By controlling the narrative, you present the charge as a temporary legal issue that does not define your ability to perform the job effectively.
Industries with Strict Employment Restrictions
Certain industries operate under federal or state regulations that impose strict disqualifications for individuals with pending felony charges, especially if the charge relates to the industry’s core function. These restrictions often exist to protect vulnerable populations or ensure the integrity of financial systems.
The financial services and banking sectors frequently disqualify applicants due to federal requirements concerning bonding and fiduciary responsibilities. Healthcare, particularly for patient-facing roles, and the education sector often have strict policies based on state licensing laws, especially for positions involving children. Government and public sector jobs requiring a security clearance or access to sensitive information typically prohibit employment while a felony charge is pending.
Planning for the Resolution of the Case
It is important to plan for the eventual resolution of the pending case, as the final disposition will significantly affect future employment opportunities. If the charge is dismissed or results in an acquittal, obtain and retain all official court documentation of the final outcome. This documentation should be readily available to provide to future employers to demonstrate that the matter is concluded and did not result in a conviction.
If the case results in a conviction, the strategy shifts toward determining eligibility for post-conviction relief, such as sealing or expungement, to mitigate the charge’s continued impact on employment. Seeking support from specialized reentry services can provide access to employers committed to second-chance hiring practices.