Employers increasingly are realizing the importance of doing professionally conducted background checks on job applicants, whether it’s a domestic employee background check or an international background check for a candidate who works or lives overseas. A background check can uncover criminal activity, civil suits that reflect on past job performance or personal behavior, and financial irresponsibility.
But should an employer do a background check on an existing employee? Is the practice allowed? If the employer checks one employee, must he check all current employees?
Not all the answers are firm. They are somewhere in a labyrinth of laws, rules and regulations, all of which can vary by state, and some of which can supersede others. Sometimes they vary even by municipality, with background search practices controlled one way in one town but differently across the street — on the other side of a municipal boundary, in another city — or outright banned for some purposes.
The vagaries of requirements are why employers should rely on an experienced, professional background check company to do the work. At Global Backgrounds, for instance, professional staff members know not only where to look for relevant information, but also what type of investigations are allowed where you conduct business.
Does an employer need a current employee’s permission to conduct a background check?
An employer must obtain a current employee’s written permission to run a background check. The permission must be given to the employee separately, not as part of other material.
Some companies require permission for periodic background checks as a condition of continued employment. That’s legal, but only if it is done within the rules. Most notably, to legally require ongoing and periodic background checks, the company must have a written policy stating the requirement, and it must be acknowledged by the employee. New permission must be obtained if the check is being conducted a year or more after the original hire date.
When is a current-employee background check valuable?
Doing a background check on a current employee can help the employer:
Ascertain if the employee continues to qualify for certain jobs
Some employers, or laws, require an employee’s record to be unblemished in particular ways. For instance, an employee who works with the elderly may be dismissed if the employee is convicted of abusing a senior. A childcare worker must be free of child abuse violations. Some companies that employ drivers require driving records that are free of moving violations, or serious violations, for a period of years.
Qualify current employees for promotions
Companies considering a promotion for a current employee might want to update that person's background check. Still, permission must be obtained to order the check. And if interviews with people who know the candidate are conducted and used in deciding on the job status, the employee is entitled to see the details of what was said and respond to the findings. All the requirements that pertain to hiring, such as not checking criminal background until an offer is made, also pertain to a current employee.
Improve safety
Drug use is perhaps the biggest factor here. Generally, it is legal for an employer to require drug tests, but again, there must be a written policy that is well known to employees, and it must be applied equally. There are exceptions, however. For two years, New York City has barred using cannabis convictions to deny employment. Now New York state has made it illegal for employers to take adverse action against an employee for off-duty cannabis use, but working under the influence is still barred and tests are allowed for meeting federal Department of Transportation safety requirements. The company should have a policy for its consideration of background checks that involve drug-related convictions, and adverse action rules must be followed.
Meet bonding requirements
Anyone who handles liquid assets for a company or union must be bonded under U.S. Department of Labor regulations. The bond must be obtained from a bonding company approved by the U.S. Department of the Treasury and listed with the Office of Labor Management Standards. Bonds are not issued without a background check.
Which law applies — federal, state or local?
Federal laws, obviously, apply to businesses everywhere. State laws and local laws, however, may require compliance in addition to federal mandates. Laws where the employer does business are likely to apply, or if business is conducted in multiple states, where job interviews are done or a current employee works.
When federal or state laws do not name certain practices as excluded, or include certain practices as protected, the practices may end up in a local ordinance as long as they are not discriminatory or a violation of a higher law. So, while federal laws governing background checks may not protect all job holders from drug testing or seeing drug test results used against them, a local law may. That was the case with New York City’s cannabis legislation.
“Ban-the-box” laws are another example. The laws, which forbid or delay criminal background checks until after a job offer is made, are enacted on state or local levels. There is no federal requirement for such considerations except on hiring federal employees or employees for companies that hold federal contracts.
The overlap of laws on different levels makes it wise to consult a professional background check company such as Global Backgrounds to make sure you are operating legally.
Will current-employee background checks meet resistance?
It’s possible that background checks on current employees or contract employees will stir hard feelings among workers. That’s especially true if the governing rules are not followed,which opens a company up to lawsuits. Failure to get permission, not letting workers know the written company policy, taking adverse action without allowing the employee to respond, and discriminating in applying the background checks are bound to elicit objections.
It pays to get advice from counsel.