Employment Screening Services
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Periodic Background Checks

Securitech Inc. recently conducted a background check on an individual who was going to work for one of our employers. After the completion of the background check, which revealed no issues, he was offered a job and went to work. Shortly thereafter a question came up internally about the applicant. A new check of the Pima County Superior Court was initiated.

Periodic, Annual or Anniversary background checks of current employees are something every employer should consider. Now before making any changes in your company policies you should consider speaking to your attorney.

What was found was that during the time the applicant was in process with the employer, he was arrested and charged with 3 crimes involving sexual misconduct with minors. He was charged between the time the background check was completed and a job offer was made.

The applicant failed to disclose these charges to his new employer. He was out for a few days during his orientation training, “due to illness with his mother in Texas”. Also because of her remote location cell phone service was not available.

Well as you might surmise, no, he was not dealing with his ill mother in Texas; rather he was confined by the detention officers at the Pima County Jail.

One may argue that an employer would likely be aware that a crime had been committed by a current employee, because that employee would miss work. However keep in mind, 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.

Best practice and a way to demonstrate due diligence is to conduct periodic background checks.
Make sure you company has in place a policy for this type of reinvestigation. The consent issue with periodic background checks, under the Fair Credit Reporting Act (FCRA), indicates periodic checks must be done with consent (unless there is a specific investigation for suspicion of misconduct or wrongdoing).

Including a sentence in your release authorization (initial hiring package) indicating the release will remain in effect during the time the individual is employed is a good policy as well. And that an employee may revoke that release by written notice to the employer.
In addition, the company should have a 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. This follows compliance with the current EEOC guidelines.
The pre-adverse action notice requirements of the FCRA would also come into play.

In our litigious society, an employer may be 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.

So, in summary, an employer should consider periodic or annual checks of each and every employee, because what you don’t know, and could have known, can still get you in trouble.

Background Checks: Not only a Right, but a Responsibility

Over the past 27 years in the employment screening business I have heard all of the reasons companies do not do background checks on prospective employees. Most disturbing is when an employer tells me that they cannot afford it.

So how much is it worth to a company to protect its employees, customers, guests, visitors or vendors who may be on their property or at their facility from the individual with a history of violent behavior? How much is it worth to keep the sex offender from working around unsuspecting and vulnerable children? How much is it worth to keep the individual who has a lengthy history of theft, from stealing from your company? What about the exposure to a charge of negligent hiring? And what about the opportunity to hire the best candidate in the market, how much is that worth?

The Fair Credit Reporting Act (FCRA) is the Federal standard by which all employers must abide by. The FCRA allows you the right to conduct a background check on any prospective employee. You have the right to know if you applicant has a criminal history. You have the right to check an individual’s driving record, if they are going to be operating your company vehicle. You have the right to confirm that the highest level of education listed on the application is correct. You have the right to contact the previous employer and ask about his/her previous work history. You have a right to know that an individual has a current professional license, and is in good standing, for the type of work they may be performing at your facility.

In Arizona you as the employer also have the protection of the blacklisting statue (ARS 23-1361), which states in part, “An employer who in good faith provides information requested by a prospective employer about the reason for termination of a former employee or about the job performance, professional conduct or evaluation of a current or former employee is immune from civil liability for the disclosure or the consequences of providing the information”. Always check with your legal counsel prior to making any changes in your hiring policies and procedures.

The FCRA allows you the opportunity to check the information on which an applicant has provided to you, and confirm your good judgment in that hiring decision.

My position is that as an employer it is not only your right, but your responsibility to conduct that background check on a prospective employee.