Many employers run background checks on applicants and candidates before making a final hiring decision.
It’s common to check someone’s criminal records before you extend an offer of employment. Checking candidates’ backgrounds doesn’t just give you peace of mind and help you decide whether or not you’re making a good hiring decision. It’s also an important part of keeping your other employees and your clients safe. Not doing your due diligence for a new hire can end up leading to liability issues if something does go wrong.
While there are federal, state, and sometimes local laws dictating how you access and maintain information about job applicants and candidates, what about current employees?
Maybe you’re worried or see some red flags, and you’d like to do a screening on someone already working for you. Below we talk about the legality and what you should know if you find yourself in this situation.
Can You Legally Screen Existing Employees?
According to the U.S. Equal Employment Opportunity Commission (EEOC), you can screen your existing employees, no matter how long they’ve been with the company.
With that in mind, if you’re going to screen a current employee, you have to follow the guidelines, including:
- You need to let your employees know your policy and explain to them why you might do continuous screenings. For example, if you’re going to be creating a new policy, explain it transparently and carefully to your staff. Let them know why you’re doing it, what types of background checks you’re going to run, and how often you’ll do them.
- Based on the Fair Credit Reporting Act (FCRA), a background check is categorized as a consumer report. Because of that, your organization has to get the permission of your employees before you request information from a third-party vendor. This applies to anyone, whether it’s a new hire or a current employee.
- It’s illegal to check the background of a job applicant or an employee when the decision is based on something like the person’s race, sex, religion, genetic information, age, or national origin.
- Get an employee’s written permission to do a background check.
- Some companies require permission to do continuous or periodic background checks as a condition of ongoing employment. That is legal, again, if done within the rules. If you’re doing a check a year or more after the original date you hire someone, you have to get new permission. The permission has to be given to the employee on its own, rather than being part of other materials.
When Would a Background Check of Current Employees Be Helpful?
Some of the reasons that an employer might consider doing a background check on people who already work for them include:
- You want to make sure that an employee is still qualified for certain jobs. For example, there are certain employers or laws that mean someone’s record has to stay without problems for them to remain in their position. If someone works with children or the elderly, to provide a scenario, the employee has to stay free of abuse violations. The same can be true of companies with employees who work as drivers. They have to avoid serious driving violations throughout their employment and not just at the time of hiring.
- If you’re an employer and you’re considering someone for a promotion, then you might want to do an update of their background check.
- Workplace safety is your responsibility as an employer. Background checks can be a way to make sure you have a safe, drug-free environment.
- If you handle liquid assets for a union or company, you’re required to be bonded under regulations from the U.S. Department of Labor. You have to get the bond from a company with approval from the U.S. Department of Treasury, and bonds aren’t issued without background checks.
The concept of post-hire background checks is one that’s becoming more common. In 2020, 12% of employers who were surveyed said they were doing at least annual background checks. That number was only 6% in 2018.
Without continuous screening, as an employer, you could be risking legal and reputational damage.
Tips For Creating a Post-Hire Background Screening Program
You need a formalized and written policy for post-hire background screenings to protect yourself. You have to screen all employees equally, and you can’t choose just some employees. You can customize your screening based on position and responsibilities.
You have to be very careful to avoid any perception of discrimination in your screening policies, both post-hiring and pre-hiring.
If you already have a policy for background checks, you can update it to include post-hire screenings. You should have your legal counsel review any changes or updates you make.
Within your policy, you should include what you’re going to review, how often you’ll conduct screenings, and a statement that the policy applies to all employees.
Notify and explain your policy changes to employees, as mentioned, and ensure everyone on your team knows who to get in touch with if they have questions or issues.
So what happens if something does come up?
You’ll have to consider each individual situation as it might arise. You’ll have to weigh your screening policy, EEOC guidelines, and the steps under the FCRA you might be required to take.
If you have to take adverse action as the result of a background check, you need to first offer the employee the opportunity to explain the situation. If your decision to not promote or to fire an employee is based on something that comes from a background check, you have to follow what’s known as an adverse action process that’s FCRA-compliant.
Finally, to be compliant, you’ll have to send a notice of pre-adverse action and give a reasonable waiting period where the employee can dispute the information. You’ll also have to send a post-adverse action notice with your intent to terminate or not offer the new position.