In most situations, yes — an employer can fire you for pending criminal charges, because nearly every U.S. worker is employed at will and the presumption of innocence is a rule for criminal courts, not a rule that binds your boss. That default has real limits, though. Federal anti-discrimination law restricts how criminal history can factor into employment decisions, background-check rules impose procedures your employer has to follow, and public employees, union members, and workers with written contracts often have far more protection than the at-will baseline suggests.
Why At-Will Employment Is the Starting Point
Every state except Montana follows at-will employment. That means an employer can terminate you for a good reason, a bad reason, or no reason at all, so long as the reason isn’t specifically illegal. Pending criminal charges are not a protected category under federal law. A private employer who learns you’ve been charged can generally let you go without violating any statute, even if you’re eventually acquitted or the charges are dropped.
This is where most people’s expectations run into the wall. The constitutional right to be presumed innocent restricts the government’s power to convict you. It does not obligate your employer to keep paying you while your case moves through the courts. Every protection discussed below is an exception carved into the at-will rule, not the rule itself.
The exceptions that matter most when charges are pending are anti-discrimination law, contractual protections, union agreements with a just-cause standard, and the due process rights that apply only to government employees. None of them creates a blanket right to keep your job while charges are open, but each can change the outcome in the right circumstances.
Arrests, Charges, and Convictions Are Not the Same
Federal guidance draws a sharp line between an arrest or pending charge and an actual conviction. The EEOC’s position is that an arrest does not establish that a person committed a crime, and rejecting or firing someone based solely on the fact of an arrest is not considered job-related or consistent with business necessity.1U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII What an employer can do is look at the conduct underlying the charge and decide whether that conduct makes you unfit for the specific job you hold.
The practical difference matters. If you’re charged with embezzlement and you work as an accountant, your employer can investigate the alleged conduct and act on what they find. A blanket policy of firing anyone who gets arrested, regardless of the charge or its connection to the job, is the kind of policy the EEOC warns against. Employers are expected to treat arrest and charge records differently than convictions and to avoid using either as automatic proof of wrongdoing.2U.S. Equal Employment Opportunity Commission. Criminal Records
When Firing Over Charges Becomes Discrimination
Title VII of the Civil Rights Act doesn’t mention criminal records, but it still governs how employers use them. The issue is disparate impact: a facially neutral policy that disproportionately screens out people of a particular race or national origin can violate Title VII if the policy isn’t job-related and consistent with business necessity. Because arrest and incarceration rates differ sharply by race in the United States, policies that penalize employees with pending charges predictably affect some racial groups more than others.
The EEOC’s enforcement guidance tells employers to weigh three things before taking adverse action based on criminal conduct: the nature and seriousness of the offense, the time that has passed since the conduct occurred, and the nature of the job held or sought.1U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII A bar-fight charge from five years ago carries different weight for a warehouse worker than for a daycare employee.
The EEOC also recommends an individualized assessment before any final decision: notice that you’ve been screened out, a chance to provide context, and genuine consideration of what you offer. Employers must apply their policies consistently as well. Treating workers with similar criminal histories differently based on race or national origin is textbook disparate treatment.2U.S. Equal Employment Opportunity Commission. Criminal Records
Rules That Apply When Your Employer Runs a Background Check
When an employer uses a third-party company to pull your background report, the Fair Credit Reporting Act kicks in. The employer must give you a standalone written disclosure that a report may be obtained and get your written authorization before ordering it.3Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports The disclosure has to be a separate document, not buried in a stack of onboarding paperwork.
If the employer then decides to act on what the report reveals, the FCRA requires a pre-adverse action notice that includes a copy of the report and a summary of your rights before the decision is final.4Federal Trade Commission. What Employment Background Screening Companies Need to Know About the Fair Credit Reporting Act That window gives you a chance to review the report for mistakes. Background reports frequently contain errors, including charges attributed to the wrong person or records that should have been expunged, and catching an error at this stage can change the outcome.
One important limitation. The FCRA applies only when your employer uses an outside consumer reporting agency. If they learn about your charges from the news, a coworker, or their own courthouse records search, the FCRA’s notice and authorization requirements don’t apply. Title VII protections still do, but you lose the procedural safeguards the FCRA would otherwise provide.
Stronger Protections: Government Jobs, Unions, and Contracts
Some workers have far more than the at-will baseline.
Public Employees
If you work for the government, the Constitution’s due process clause applies to your employer’s actions. The Supreme Court held in Cleveland Board of Education v. Loudermill that a public employee with a property interest in continued employment cannot be fired without notice of the charges, an explanation of the employer’s evidence, and a chance to respond before termination.5Justia Law. Cleveland Board of Education v Loudermill, 470 US 532 (1985) The pre-termination hearing doesn’t have to be a full trial; a more thorough post-termination review typically follows. Federal civil service agencies may take adverse actions for conduct that promotes the efficiency of the service, but they must follow the constitutional procedures.6U.S. Merit Systems Protection Board. What Is Due Process in Federal Civil Service Employment Private-sector workers have no equivalent constitutional claim against their employer.
Union Members
If you’re covered by a collective bargaining agreement, you probably have a just-cause standard for termination. That is a dramatically stronger position than at-will employment. Your employer must show a legitimate, documented reason for firing you, and pending charges alone may not clear that bar, depending on the contract language and the nature of the charges. Most agreements include grievance procedures that let you formally challenge a termination. For federal employees represented by a union, the governing statute requires those procedures to be fair, simple, and provide for expeditious processing.7U.S. Federal Labor Relations Authority. 5 USC 7121 – Grievance Procedures Private-sector agreements typically escalate through multiple steps to binding arbitration. Even where an employer places you on administrative leave, a union can often negotiate the terms, including whether the leave is paid.
Workers With Written Contracts
An individual employment agreement can also displace the at-will default. If your contract or offer letter says termination requires cause, or requires an actual conviction rather than a charge, that language is enforceable and often your strongest tool. Employee handbooks sometimes contain similar language, though the enforceability of handbook provisions varies by state.
Regulated Industries and Professional Licenses
Some jobs come with consequences that go past a single employer’s discretion. In banking, Section 19 of the Federal Deposit Insurance Act prohibits anyone convicted of a crime involving dishonesty, breach of trust, or money laundering from working at an FDIC-insured institution without written consent from the FDIC. The prohibition normally triggers on conviction, but pretrial diversion programs are treated the same as convictions. Entering a diversion program for a covered offense can produce the same employment ban.8Federal Deposit Insurance Corporation. Your Guide to Section 19
Security clearances create similar exposure. You’re generally required to report criminal charges to your security officer within set timeframes, and failing to report can trigger revocation regardless of how the case turns out. Even an acquittal doesn’t guarantee your clearance survives, because clearance officials evaluate the underlying conduct, not just the legal outcome. A suspension or revocation often means immediate termination from any position that requires the clearance.
Professional licensing boards in healthcare, law, education, and finance may also act on pending charges. Many boards require self-reporting and can restrict your practice or impose supervision while a case is open. Standards vary by state and profession, so check with your board early. Waiting until the board contacts you is almost always worse than proactive disclosure.
If You’ve Already Been Fired
Unemployment Benefits
Whether you qualify for unemployment depends on why you were terminated. The general rule is that benefits are available to workers who lose their jobs through no fault of their own. Most states define disqualifying misconduct as deliberate behavior connected to your work. Being charged with a crime that happened outside of work doesn’t automatically count. If your employer fires you solely because of the charges, without any on-the-job behavior involved, you may have a strong eligibility argument. If the underlying conduct occurred at work or during work hours, the state agency is more likely to find misconduct and deny benefits.
File your claim promptly regardless of the circumstances and let the agency decide. If your claim is initially denied, every state provides an appeals process, and many workers who are denied on the first pass succeed on appeal once they can explain the full context.
Legal Claims Against Your Employer
A wrongful termination claim requires you to show the firing broke a specific law or contract, not just that it felt unfair. The most common grounds when pending charges are involved:
- Disparate impact or disparate treatment under Title VII, where the employer’s policy disproportionately affects a protected group or you were treated worse than similarly situated coworkers of a different race or national origin. These claims go to the EEOC.
- Breach of contract, where an employment agreement or handbook required cause or a conviction before termination and your employer fired you on charges alone.
- A public policy violation, such as being fired for cooperating with law enforcement, testifying as a witness, or exercising another legal right. Most states recognize this exception to at-will employment.
- An FCRA violation, where your employer used a third-party background check but skipped the required disclosure, written consent, or pre-adverse action notice.
- Retaliation, if the charges themselves trace back to whistleblowing or reporting your employer’s illegal conduct.
Title VII charges generally must be filed with the EEOC within 180 days of the adverse action, or 300 days in states with their own fair employment agency. Missing that deadline usually kills the claim. FCRA violations have their own limitations period and can carry statutory damages even without proof of financial harm. Many employment lawyers offer free initial consultations and take cases on contingency, typically 25% to 40% of any recovery.
What to Do While Charges Are Pending
The period between being charged and reaching a resolution is when your job is most vulnerable and when you have the most ability to influence what happens. Read your employment contract, employee handbook, and offer letter for language about termination standards and criminal history. Any just-cause or conviction-required language is worth flagging.
Document everything. Save emails, text messages, and written communications about your employment status. If your employer takes any adverse step, record the date, who communicated it, and the reasons given. That record matters if you later file an EEOC charge or pursue a wrongful termination claim.
If your employer runs a background check through a third party, confirm you received the written disclosure and gave written consent. If a pre-adverse action notice arrives, review the report carefully and dispute any errors with the consumer reporting agency in writing. If you’re in a union, contact your representative immediately. If you hold a professional license, check your reporting obligations before the board contacts you. The charges themselves may resolve favorably; the employment consequences you ignore in the meantime can be permanent.