What to do when background check reveals ‘pending’ criminal case

Q         A background check for a job candidate revealed a “pending” misdemeanor case. Can we ask them to reapply in the future once the case has been resolved?

It’s up to you. Employers may ask an applicant about their previous criminal record but can only inquire about convictions that haven’t been annulled by a court.

This is the question you can ask applicants: “Have you ever been arrested or convicted of a crime that hasn’t been annulled by a court? If yes, please provide more details.” As you will note, unlike other states, inquiries in New Hampshire aren’t limited to convictions or felonies.

If the applicant responds “yes” and provides information about a pending misdemeanor, most employers consider the nature of the offense and its relationship to the job. This is consistent with the Equal Employment Opportunity Commission’s (EEOC) most recent guidance on criminal record checks. The guidance draws a distinction between arrests and convictions,with a greater emphasis on convictions, but it doesn’t prohibit inquiries about arrests.

If you wish to proceed by making a job offer, a criminal record check can follow with the applicant’s consent. Typically, employers in New Hampshire only conduct such searches for candidates who receive a conditional job offer.