What Is an Open Felony on a Background Check?

For job candidates with a criminal past, the prospect of a pre-employment background check can be disheartening. Individuals with a criminal record are all too familiar with being rejected from a job because of their past. This is especially true for the 6.1 million felons living in the United States.

Felons are often perceived to have committed serious crimes. As a result, felons are often automatically disqualified from positions because of their past actions.

Convicted Felons

Convicted felons are likely familiar with how their crimes are reported on a background check. If convicted of a felony, an individual will have this label for the rest of their life. This is barring an expungement of records, which is fairly uncommon. However, the twelve states below only allow employers to access criminal records from up to 7 years ago[1].

  • California
  • Colorado
  • Kansas
  • Maryland
  • Massachusetts
  • Montana
  • Nevada
  • New Hampshire
  • New Mexico
  • New York
  • Washington
  • Texas

For individuals living in states other than these, criminal records are largely available forever. Some employers will utilize this availability of records and check the entirety of an individual’s criminal history. However, many companies will only look back 7 years in the past. The nature of the position will likely determine how long an employer chooses to look back. For instance, a job at a bank, airport, or other high-security job will likely look at an individual’s entire history. This is, of course, if they are legally allowed to do so. Manufacturing, food service, and the like will likely stick to the 7 years.

Now, what about an individual with a pending, or “open” charge? Does this show up on background checks?

Open Felonies

Open felonies are felony charges that an individual has not yet been convicted of. For example, if an individual gets arrested and is charged with a felony, they now have an open felony. This felony will remain open until the individual is either convicted or acquitted of the crime.

The average time between arrest and conviction is 6 months. This time can vary greatly on either side. During this time, individuals are often stuck with open felonies for long periods of time.

The vast majority of states allow for open felonies to be available on background checks. Whether the employer chooses to search for this is up to their discretion. This information may be used by the employer to disqualify the candidate from the position. However, the Equal Employment Opportunity Commission (EEOC) has guidelines as to how this information may be used. Prior to making any decisions regarding employability, the EEOC determines how a criminal record can be used. This institution mandates that the nature of the crime, the nature of the job, and the time since the crime was committed are taken into consideration[2]. If these criteria don’t exclude a candidate from a position, but they are disqualified anyway, the employer may be susceptible to a lawsuit.

Open felonies are becoming increasingly common as the United States court system continues to be overburdened. Trial times are being pushed out and defendants can’t meet with their public defender. Because of this, individuals are stuck with an open felony for a long amount of time before they are allowed to go to trial. Many of these people are unsure of how to relay this status on a job application, or if they are obligated to.

Answering the Job Application

So, how should someone with an open felony respond to criminal-past-related job application questions? This is all dependent on how the question is worded. Assume that a job application reads the following:

“Have you ever been charged with a felony”

Individuals with open felonies would need to say “yes”. This is because, although they haven’t been convicted, they were charged with a felony.

If an individual is charged with a felony but got a non-conviction result during the proceedings, the answer is a bit different. A non-conviction result could be the result of various factors. This includes crime dismissal, refusal to prosecute, or deferred adjudication. In this case, individuals would have to answer “yes” only if the arrest was fewer than 7 years ago. This is because information on non-convictions is only available for 7 years after an arrest[3].

Another job application may contain slightly different wording. This can change the way an individual can respond to the question.

“Have you ever been convicted of a felony”

In this case, only individuals who have been formally convicted of a felony must answer “yes”. Individuals with non-convictions or open felonies would answer “no”. This gets a bit tricky, however, because employers may confuse themselves with their own diction and suspect the applicant of lying. For example, if a job application asks if someone has been convicted of a felony and that individual answers “no”, the employer may expect no felony charges on their record. Upon completing a background check, the employer sees a felony charge and assumes that the applicant lied, drastically harming their chance for employment.

What to Expect of an Employer

Having an employer mistakenly believe that a candidate is being dishonest presents an inarguably unfavorable situation. This is a difficult problem to solve without telling the potential employer upfront that a felony charge was issued but wasn’t proven. Because this isn’t quite an appealing option, felons must simply hope that their employer knows the difference between the two.  They must also be aware of what information they’re asking for. This is also admittedly not ideal; however, it is the case in the real world.

It should be noted that employers are only allowed to ask questions about an applicant’s background during certain points in the hiring process. An employer asking these questions too early could be violating the rights of the applicant. If an individual believes that their rights are being violated, they should check their local legislature to ensure that they are being treated fairly.


Even though an individual hasn’t yet been convicted of a crime, evidence of the charge is available to employers. Even if this charge is dismissed, it will remain on record for 7 years. This makes it further difficult for felons to find employment.

Individuals with an open felon should carefully read the diction on a job application and respond appropriately. Employers are held to a certain standard as far as using this information to disqualify a candidate. Misuse of this information is grounds for a lawsuit. Felons should be aware of their rights as far as what an employer is allowed to ask on an application.


Will an open misdemeanor show up on a background check?

This all depends on state legislature. There are states that will show pending felonies but not pending misdemeanors. Further, there are states where both pending felonies and pending misdemeanors are visible. Individuals should contact their government representative for more information regarding state-by-state information.

Will an open felony automatically disqualify me for a job?

No, not automatically. Many employers will likely have questions about the incident, and it is advised that candidates be as truthful as possible during the process. Because the candidate has not been convicted of a crime, guilt should not be assumed by the employer. However, in the real world, guilt is often subconsciously assumed. Because of this, it is important that candidates come across as trustworthy and authentic when discussing the offense with employers.

[1] https://help.checkr.com/hc/en-us/articles/360000725967-Lookback-periods-How-far-back-are-criminal-records-searched-

[2] https://www.eeoc.gov/

[3] https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

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