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.