Articles - Health / Safety / Risk Mgmt

A new and ongoing issue is whether employers should conduct ongoing or periodic criminal checks of their current workforce. Although a background check may have shown a clear record on the way in, what if a person commits a crime when employed. Although the argument is made that as employer would likely be aware of a crime committed by a current worker because the worker did not show up to work,

there are many serious offenses where a worker can be bailed out, and serve a sentence with work furlough, weekend jail, volunteer hours or some other alternative to actual incarceration. Such ongoing searches are seen as a way to continue to demonstrate due diligence and to protect the workplace.

Even though periodic criminal screening of current employees may have some apparent advantages, the jury is still out on whether it is a cost-effective tool or even if the advantages outweigh the disadvantages. Here are some points to consider:

1.There is no empirical evidence that shows that such checks have resulted in any advantage to employers. There are no studies to suggest on a cost-benefit basis, such checks produce results.

2.If such cheeks are done, the next issue is how. If databases are used, then there is the possibility of both false positives and false negative since databases available to private employers are not always complete or up to date. In large states like California, New York and Texas, such databases searches have very limited value. . (See a previous blog written on the disadvantages of databases at http://hr.toolbox.com/blogs/background-checks/beware-of-online-criminal-searchesthe-money-you-save-may-put-your-firm-at-risk-40906

3.If there is a periodic check, it should be done ideally on the courthouse level in addition to any databases, which increases the cost.

4.There is also the consent issue. Under the federal Fair Credit Reporting Act (FCRA), periodic checks must be done with consent (unless there is a specific investigation for suspicion of misconduct or wrongdoing), Although most consent forms contain “evergreen” language that makes the consent valid indefinitely or until revoked (usually in writing), at some point, an employee can either withdraw the consent or claim it has become stale over time. In California, it is arguable that a new consent is needed each and every time.

5.If an employee withdraws consent, the question arises if the employee can be terminated for refusal to consent. It is clear that employers have much more discretion in requiring pre-employment testing, based upon the fact that they do not have experience with the applicant. For that reason, courts have granted wider latitude pre-hire. However, once someone is employed, the necessity argument is less convincing since the employer now has a history with the worker. Therefore, it is not clear that an employee can be terminated for a refusal to consent to an ongoing criminal check, absent some explicit employer policy. The employer could argue that since employment is “at will,” failure to consent to an ongoing background checks can constitute grounds for termination. The problem is that as time goes on, the “at will” relationship can become murky depending upon the facts of the employment relationship.

6.The issue becomes more complicated if the refusing employee is a member of a protected class. That raises potential discrimination issues.

7.In addition, a firm needs a well laid out policy in an employee manual as to how they will deal to a new criminal record that may be uncovered during a periodic check. At a minimum, any action must be bases 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. In addition, the pre-adverse action notice requirements of the federal Fair Credit Reporting Act (FCRA) would come into play.

8.There are also the cultural considerations. What type of message does it send the workplace if workers are constantly suspected of criminal activity. What type of workplace stress is created if an otherwise long time and loyal employee feels they re subject to dismissal at any time for a minor offense that may or may not bear upon their suitably a an employee. If the employer is unionized, then union rules can also play a role.

Having noted the disadvantages, the case can well occur where an employer is sued for a failure to check current employees, if such a failure to check was the proximate cause of workplace violence or some other harm that arguably could have been prevented. .

The bottom-line is that this is an issue that will be worked out in court decision in the coming years. In the meantime, employers contemplating such periodic checks should approach it with caution and seek the advice of thier attorney.

BIOGRAPHY

Lester S. Rosen is an attorney at law and president of Employment Screening Resources (ESR) , a national background screening firm headquartered in Novato, CA. See; www.ESRcheck.com

He has authored two books on screening and hiring: “The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and “The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program."

He is considered an expert in employment screening background checks, and is a speaker frequently at nationwide human resources, fraud and security conferences. >>>

He has testified as an expert on employment screening background checks in negligent hiring cases in California, Florida and Arkansas.

He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair.

Mr. Rosen graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis School of Law, serving on the school Law Review. While practicing law, he specialized in criminal law and his practice has included federal crimes and death penalty cases. He holds the highest attorney rating of A.V. in Martindale-Hubbell. He has served as an adjunct professor of law teaching criminal law and procedure at Hastings College of the Law, and served as faculty member and program chairman of the Hastings College of Trial Advocacy in San Francisco.

He has also been active in working on legislation in California. In 2002, he worked with the California legislature to amend AB 655, a law that adversely affected employers in the area of reference checks and hiring in California. He continues to be involved in working on California legislation effecting employers.

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