Table of Contents
- What Your Employer Can Legally Find Out About Pending Criminal Charges
- Your Employment Rights With Pending Criminal Charges
- How to Explain Pending Charges to an Employer (If You Must Disclose)
- The Duty of Disclosure in Employment Contracts and HR Policies
- Digital Footprint Management: Keeping Charges Off the Internet
- The Expungement Process for Criminal Records in California
- When to Hire Legal Counsel for Workplace Disclosure Issues
- Frequently Asked Questions
Last Updated: September 15, 2026
What Your Employer Can Legally Find Out About Pending Criminal Charges
Most people assume an arrest stays between them, the police, and their attorney. That’s wrong, and it’s the biggest mistake people make when trying to figure out how to keep criminal charges quiet from employer scrutiny. This guide from Naderi Law Office, Inc. explains what employers can access and where your real exposure lies.
Pending criminal charges are often public record the moment they’re filed. Court dockets, arrest logs, and case filings are accessible to anyone, including a screening company your employer has already hired.
You’re not defenseless, but understand the mechanics before deciding what to say, what to withhold, and when to call a lawyer.
How Background Screening and Continuous Monitoring Work
Background screening verifies a candidate’s history through consumer reporting agencies governed by the Fair Credit Reporting Act, usually at hiring. Continuous monitoring flags new arrests, charges, or filings against current employees, often within days.
Many businesses subscribe to continuous monitoring for roles involving money, driving, or vulnerable populations. Don’t assume your employer only checked once at hire, monitoring can surface a new charge long before your case resolves.
The Difference Between an Arrest Record and a Conviction Record
An arrest record documents that law enforcement took you into custody. A conviction record documents that a court found you guilty. The distinction matters enormously.
Many employers and screening services treat an arrest as a red flag even without a conviction, which is why “it was just an arrest” rarely ends the conversation. Under EEOC guidance on arrest and conviction records, employers are expected to consider the nature of the offense, how long ago it occurred, and its relevance to the job before making an adverse decision.
Your Employment Rights With Pending Criminal Charges
An employee facing pending charges still holds rights, though narrower than most hope. Two sets of rules run at once, the criminal case and the workplace, and they don’t point in the same direction.
Your Rights Under the Fair Credit Reporting Act
If your employer uses a third-party screening company, the Fair Credit Reporting Act gives you specific, enforceable rights:
- Pre-adverse action notice. Before the employer takes adverse action based on a consumer report, it must give you a copy of the report and a written summary of your rights.
- A chance to dispute. You get a reasonable opportunity to dispute inaccurate or incomplete information directly with the screening company.
- Post-adverse action notice. After the decision, the employer must tell you it relied on the report, identify the screening company, and confirm you can dispute and get a free copy of the report within 60 days.
- Dispute resolution timelines. Consumer reporting agencies generally must investigate disputed information, usually within 30 days, and correct or delete what they can’t verify.
These rights matter because screening reports are frequently wrong, a charge filed against someone with a similar name, a dismissed case still showing as active, or an arrest logged without its disposition. A written dispute is often the fastest way to correct the record before it drives a decision.
The ‘Right to Remain Silent’ in an HR Context
Here’s the conflict almost no guide explains: your criminal attorney will likely tell you to say nothing about the facts, while HR may say cooperation is expected and refusing to answer is itself a policy violation.
Both can be true, and that’s the trap. A statement to an internal investigator isn’t protected like one to your lawyer, it can be recorded, written into a report, and later subpoenaed by prosecutors. What keeps your job short-term can damage your defense long-term.
Most defense attorneys reach a narrow resolution: acknowledge a matter exists without discussing what happened. You need not narrate events, name witnesses, or offer your version to an employer. If HR presses, say you’ve been advised not to discuss specifics while the case is active.
Never discuss the facts of your case with HR or an internal investigator without speaking to a criminal defense attorney first. Statements made in a workplace investigation can be subpoenaed and used against you in the criminal matter. This is the single most common way employees hurt their own defense while trying to protect their job.
Suspension vs. Termination Policies and When Due Process Applies
Employers generally choose between unpaid suspension pending resolution, reassignment, or termination for cause. Suspension often signals the employer is waiting for the case to resolve; termination for cause means they believe your conduct or a policy breach justifies immediate dismissal.
Due process in a private workplace isn’t the same as in criminal court. If you belong to a union or work under a contract with a defined disciplinary procedure, you may have a right to a hearing and representation during investigatory interviews. Otherwise, most employment is at-will.
A workplace investigation may run parallel to your criminal case, and what you say in one can affect the other. If your employer has a written progressive discipline policy, read it, if it promises steps before termination and the employer skips them, that deviation can matter if you later challenge the decision.
What You Do Not Have
You don’t have a blanket right to hide a pending charge from a direct question on a formal disclosure form. Lying on that form is a separate problem from the charge itself and can become the actual reason you’re fired, one the employer can prove with a document you signed. The line between staying quiet and actively misrepresenting decides most of these cases.
How to Explain Pending Charges to an Employer (If You Must Disclose)
If disclosure is required, by contract, policy, licensing rule, or because the charge is about to surface through monitoring, how you handle the conversation often matters more than the charge itself.
Decide First Whether Disclosure Is Actually Required
Before saying anything, confirm the obligation.
Request a copy of your employee handbook and your signed contract. What the written policy actually requires is what governs your obligation, not what a manager tells you verbally. If the language is ambiguous, get a lawyer to read it before you decide.
Choose the Right Time, Channel, and Audience
A Script You Can Actually Use
Handling the Follow-Up Questions
What Not to Do
The goal of disclosure is not to win the employer’s sympathy. It is to satisfy your obligation, control the narrative, and avoid creating a second problem, a false statement or a concealment claim, that outlives the original charge.
The Duty of Disclosure in Employment Contracts and HR Policies
Request a copy of your employee handbook and your signed contract. Look specifically for the words “arrest,” “charge,” “conviction,” and “disclosure.” What the policy actually requires is what governs your obligation, not what a manager tells you verbally.
Digital Footprint Management: Keeping Charges Off the Internet
The Expungement Process for Criminal Records in California
Expungement is a post-conviction remedy. If your charges are still pending, your priority is the criminal case itself, not the cleanup that comes after.
When to Hire Legal Counsel for Workplace Disclosure Issues
| Situation | Immediate Step | Why It Matters |
|---|---|---|
| Employer asks about a pending charge | Consult an attorney before answering | Protects your defense from self-incrimination |
| Contract requires disclosure | Review the exact clause language | Silence can become a separate fireable offense |
| Screening company flags an error | File an FCRA dispute in writing | Preserves your right to challenge adverse action |
| Mugshot appears online | Document and request removal | Reduces informal employer discovery |
| Case has concluded | Ask about expungement eligibility | Restores ability to answer “no” on some forms |
Frequently Asked Questions
Are employees legally required to disclose pending criminal charges?
In most states, including California, employers cannot ask about an arrest that did not lead to a conviction. However, if your employment contract or a specific industry regulation (such as those for healthcare or finance) requires disclosure, you may be obligated to report pending charges. Review your contract and consult legal counsel before deciding what to share. Failing to disclose when required can result in termination for cause.
Can an employer fire you for a pending criminal charge?
An employer can terminate you for a pending charge only if it relates directly to your job duties or violates a specific company policy. In California, Labor Code protections and fair chance hiring rules limit how employers use arrest records. However, at-will employment means you can be let go for almost any reason that is not illegal. A pending felony charge may trigger a suspension while the case proceeds, giving you time to resolve the matter.
How do background check services report pending charges?
Background screening companies typically report pending charges as open cases with a status of ‘pending’ or ‘disposition unknown.’ Continuous monitoring services may alert your employer if a new charge appears after your initial hire. Under the Fair Credit Reporting Act (FCRA), employers must follow adverse action procedures before taking negative action based on a background check, giving you a chance to dispute inaccurate information.
What are the risks of not disclosing a criminal charge to an employer?
If your employment contract or a mandatory reporting rule requires disclosure, failing to report a pending charge can be treated as misconduct or a contractual breach, leading to termination for cause. It can also damage your credibility if the employer discovers the charge later through a background check. In regulated industries, non-disclosure may jeopardize your professional license. Weigh the risks with a lawyer before deciding to stay silent.
Facing a pending charge while trying to protect your job is one of the most stressful positions a person can be in, and the wrong word to the wrong person can cost you both. Naderi Law Office, Inc. offers aggressive defense strategies, seasoned attorneys, and a free case evaluation so you understand your options before you speak to anyone at work. Get started with Naderi Law Office, Inc. and protect your freedom, your record, and your livelihood.