By Lester Rosen, Employment Screening Resources (ESR) President
In a recent blog on ‘Background Checks: Trends and Legal Issues’ on HR Toolbox by background check expert and Attorney at Law Lester Rosen, the verdict on whether or not the advantages of periodic background checks of current employees outweigh the disadvantages is: “the jury is still out.”
“To avoid bad hiring decisions, employers have increasingly turned to pre-employment background screening as a risk management tool,” writes Rosen, founder and President of Employment Screening Resources (ESR), a national background screening firm, and author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ the first comprehensive book on employee background checks. “No background screening program can be conducted, however, without a full understanding of a number of laws, including the Fair Credit Reporting Act (FCRA), discrimination and privacy law, the ADA (Americans with Disabilities Act), and a host of state specific rules. In addition, for employers to be able to defend themselves from allegations of negligent hiring, they must demonstrate due diligence in their hiring process.”
A new issue Rosen tackles is whether employers should conduct periodic criminal background checks of their current workforce since – although a background check may show a clean record when an employee is hired – an employee may commit a crime while employed. These ongoing searches are a way to demonstrate due diligence and to protect the workplace. Although some may argue that an employer would likely be aware of a crime committed by a current worker because that employee would miss work, many serious offenses may end up with the employee being bailed out and serving a sentence with work furlough, weekend jail, volunteer hours, or some other alternative to actual incarceration.
Even though periodic criminal background checks of current employees may have some apparent advantages, Rosen feels that “the jury is still out” on whether it is a cost-effective tool or even if the advantages outweigh the disadvantages. He offers these points to consider:
- There is no empirical evidence that shows that periodic background checks have resulted in any advantage to employers. There are no studies to suggest on a cost-benefit basis, such checks produce results.
- If such periodic background checks are done, the next issue is how. If databases are used, then there is the possibility of both false positives and false negative since databases available to private employers are not always complete or up to date.
- If there is a periodic background check, it should be done ideally on the courthouse level in addition to any databases, which increases the cost.
- There is also the consent issue with periodic background checks. Under the federal Fair Credit Reporting Act (FCRA), periodic checks must be done with consent (unless there is a specific investigation for suspicion of misconduct or wrongdoing).
- If an employee withdraws consent for periodic background checks, the question arises if the employee can be terminated for refusal to consent. It is clear that employers have much more discretion in requiring pre-employment background checks, based upon the fact that they do not have experience with the applicant.
- The issue becomes more complicated if the employee refusing periodic background checks is a member of a protected class since that raises potential discrimination issues.
- In addition, a firm needs a well laid out policy in an employee manual as to how they will deal to a new criminal record that may be uncovered during a periodic background check. At a minimum, any action must be based upon some business justification, taking into account the nature and gravity of the offense, the nature of the job and how long ago it occurred. In addition, the pre-adverse action notice requirements of the FCRA would come into play.
- There are also the cultural considerations with periodic background checks. What type of message does it send the workplace if workers are constantly suspected of criminal activity? What type of workplace stress is created if an otherwise long time and loyal employees feel they are subject to dismissal at any time for a criminal offense that may or may not bear upon their suitably a an employee?
However, Rosen states that the case may well occur where an employer is sued for a failure to perform periodic background checks on current employees, if such a failure was the proximate cause of workplace violence or other harm that arguably could have been prevented.
“The bottom-line is that this is an issue that will be worked out in court decision in the coming years,” Rosen concludes. “In the meantime, employers contemplating such periodic checks should approach it with caution and seek the advice of their attorney.”
The mission of Rosen’s blog ‘Background Checks: Trends and Legal Issues’ is to assist HR professionals in keeping up with legal developments, trends, and best practices in the critical area employment screening background checks. To learn more about background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.
Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was also the third background screening company to be ‘Safe Harbor’ certified. For more information, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations and Business Development, at 415.898.0044 or jcallahan@ESRcheck.com.