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Implementing background checks
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Implementing background checks
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A company has been operating for several years and has now decided to start conducting background checks on all new hires. Are they legally required to run background checks on existing employe
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Forums » Topic Forums » Legal Forum » Implementing background checks
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Implementing background checks
posted at 5/4/2012 11:47 AM EDT
on Workforce Management
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Posts: 1
First: 5/4/2012 Last: 5/4/2012 |
A company has been operating for several years and has now decided to start conducting background checks on all new hires. Are they legally required to run background checks on existing employees due to the new policy? |
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Re: Implementing background checks
posted at 5/7/2012 8:40 AM EDT
on Workforce Management
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Posts: 127
First: 9/21/2011 Last: 11/12/2012 |
Hopefully Dave will see this one and respond, but I haven't seen him out here lately. |
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Re: Implementing background checks
posted at 5/9/2012 9:30 AM EDT
on Workforce Management
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Posts: 13
First: 2/6/2012 Last: 8/30/2012 |
Hi: I would not feel compelled to conduct background checks on previously hired employees. Employers' hiring practices frequently change and typically the employer certainly doesn't require current employees to go through the new process (e.g., interviews, assessments, job simulations)--pre-employment screening is used to predict how individuals will perform on the job--if they're currently performing the job adequately, there's no reason to use a proxy. Also, from a liability perspective, I think it's a stretch to argue that due diligence requires the employer to go back and conduct background checks on current employees just because a new approach has been adopted to screen prospective employees. I trust these thoughts are helpful. Dave Arnold, Ph.D., J.D. |
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Re: Implementing background checks
posted at 5/9/2012 11:46 AM EDT
on Workforce Management
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Posts: 148
First: 9/20/2011 Last: 12/12/2012 |
In Response to Re: Implementing background checks: Hi: I would not feel compelled to conduct background checks on previously hired employees. Employers' hiring practices frequently change and typically the employer certainly doesn't require current employees to go through the new process (e.g., interviews, assessments, job simulations)--pre-employment screening is used to predict how individuals will perform on the job--if they're currently performing the job adequately, there's no reason to use a proxy. Also, from a liability perspective, I think it's a stretch to argue that due diligence requires the employer to go back and conduct background checks on current employees just because a new approach has been adopted to screen prospective employees. I trust these thoughts are helpful. Dave Arnold, Ph.D., J.D. Posted by darnold Dave- My question is this: Does an employer's obligation to his workforce regarding background checking stop at time of hire? If an employee, over time, becomes potentially "dangerous" to co workers based on things that could come up during a periodic background review, is there an obligation to check and act? (not my best language). In other words, is the one time check and then no check again even if say 10 years pass a reasonable defense if something happens in the workplace? |
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Re: Implementing background checks
posted at 5/9/2012 2:46 PM EDT
on Workforce Management
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Posts: 13
First: 2/6/2012 Last: 8/30/2012 |
Hi: An employer certainly has an ongoing duty to reasonably protect its employees. But, this should reasonably be satified by focusing on workplace behavior or flags of behavior away from work that may be job-related. If the job were a particularly safety-sensitive one (e.g., entailed carrying a firearm), then periodic criminal background checks might be well advised from a liability insulation perspective. As an aside, periodically conducting mandatory background checks on employees also raises a host of potential legal issue for the employer (e.g., FCRA eomplinace, Can you legitimately terminate someone for not authorizing a background check, disparate impact exhibited by background checks, documenting their job-relatedness). Hope these further thoughts are helpful. Dave Arnold, Ph.D., J.D. |
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Re: Implementing background checks
posted at 5/9/2012 3:10 PM EDT
on Workforce Management
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Posts: 148
First: 9/20/2011 Last: 12/12/2012 |
In Response to Re: Implementing background checks: Hi: An employer certainly has an ongoing duty to reasonably protect its employees. But, this should reasonably be satified by focusing on workplace behavior or flags of behavior away from work that may be job-related. If the job were a particularly safety-sensitive one (e.g., entailed carrying a firearm), then periodic criminal background checks might be well advised from a liability insulation perspective. As an aside, periodically conducting mandatory background checks on employees also raises a host of potential legal issue for the employer (e.g., FCRA eomplinace, Can you legitimately terminate someone for not authorizing a background check, disparate impact exhibited by background checks, documenting their job-relatedness). Hope these further thoughts are helpful. Dave Arnold, Ph.D., J.D. Posted by darnold Thanks Dave. I did not think that FCRA would be part of a periodic background check. I would be looking for safety and criminal activities that could expose my staff to danger. Disparate impact if I check everyone?. If protected classes are involved in bad activities more frequently than non protected, that means I should not check everyone? Do I have to wait until something happens to give me "reasonable grounds" to check? After the fact is always too late........... If something happens and you have not rechecked are you on safe ground that "I had no obligation to do so"? |
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Re: Implementing background checks
posted at 5/9/2012 4:02 PM EDT
on Workforce Management
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Posts: 13
First: 2/6/2012 Last: 8/30/2012 |
H: Quick thoughts. Dave I did not think that FCRA would be part of a periodic background check. I would be looking for safety and criminal activities that could expose my staff to danger. FCRA applies if you procure the check through a consumer reporting agency, which most employers use. Hence, the employee needs to authorize the check and other FCRA provisions must be complied w/. Disparate impact if I check everyone?. Yes, but disparate treatment if you don't check everyone in a specific job---almost always disparate impact b/c of the nature of the checks. The EEOC would strictly scrutinize a complaint based on a termination alleging disparate impact and a strong showing of job-relatedness would need to shown. Do I have to wait until something happens to give me "reasonable grounds" to check? If you have reasonable grounds, hopefully you could terminate on the basis of that behavior alone. However, I would feel comfortable using reasonable suspicion as a triggering event to do individual background checks. If something happens and you have not rechecked are you on safe ground that "I had no obligation to do so"? Unless it's a safety-sensitive position, I don't think you have a duty to do so. I previously worked for a major airline, pilots had periodic physicals, background checks, etc.--no other employees did. |
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Re: Implementing background checks
posted at 5/10/2012 9:43 PM EDT
on Workforce Management
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Posts: 32
First: 10/25/2011 Last: 8/27/2012 |
I like Daves advice. I have some experience in the recruitment of people for sensitive positions and we were even allowed to use polygraphs (in most jurisdictions). However, we still ran intop problems on the "human side" of thgs when some operational leaders wanted to develop their own standards. A an aside...I would like to ask if Daves username is a statement of being or just a moniker... ;-) |
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Re: Implementing background checks
posted at 7/11/2012 5:13 PM EDT
on Workforce Management
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Posts: 3
First: 7/11/2012 Last: 10/30/2012 |
Many of our clients (our company has been doing background checks for over 30 years) conduct annual background rechecks on all of their employees, which may include both criminal records checks and driving records checks. As long as you have a signed authorization form that states it is for the length of their employment, I believe the FCRA is covered in that regard. As for starting up a new policy for background screening, unless you are prepared to possibly terminate some existing employees for criminal records in their past, then you may want to "grandfather" in existing employees. Make sure you understand and follow the EEOC's latest guidelines also before making any decisions based on a background check. |
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