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Dear Workforce How Do We Perform Background Checks On Already Hired Employees

It is legal to screen current employees as long as you respect all their rights. As a practical matter, you must decide if it’s worth the risk of alienating loyal employees.

September 7, 2011
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Dear Stepping Gingerly:

Since the events of Sept. 11, many organizations are revisiting their policies concerning pre-employment background checks and safe hiring. When reviewing background-checking policies, the question’s been coming up: Should current employees should be screened? Or should the policy should apply to new applicants only?

Employers are also increasingly concerned about multimillion-dollar jury verdicts that have resulted from negligent hiring cases. In the case of a nonprofit organization providing public services, there is always the issue of legal exposure if an unscreened staff member causes harm.

There are two factors to consider in screening current employees--legal and practical. It is perfectly legal to screen current employees as long as all of their rights are respected. A current employee is entitled to the same legal rights as a new applicant (and if there is a union involved, perhaps even more rights). If the background check is performed by a third-party service provider, then current employees are entitled to the same rights under the federal Fair Credit Reporting Act (FCRA) as new applicants, which include a disclosure of rights and a written authorization. Some states have additional rules.

The practical consideration is whether the employer wants to ask existing employees to consent to a background check. The issue is one of corporate culture--not alienating employees that have been hardworking and loyal by performing background checks.

If an employer decides it is necessary to screen current employees, human resources should explain that screening is a business necessity, done for the good of the entire organization, and not directed at any employee. This will increase employee "buy-in."

It’s also important that employees understand that all of their rights are being respected, and nothing will occur as a result of a background check until the employee has an opportunity to discuss any negative findings with the employer. You don’t want employees to powerless, worried that they’ll face an adverse action without an opportunity to be heard.

Tell all employees that they may come to human resources privately to discuss the procedure. An employee may start off talking about "privacy" concerns, when in fact there is something in his or her background to be concerned about.

SOURCE: Lester S. Rosen, attorney at law and founder of Employment Screening Resources, Novato, California, Dec. 16, 2002.

LEARN MORE: ReadUsing Assessment Tools for Better Hiring.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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