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Dear David: When should we run background checks of applicants and current employees?


Question:
When should we run background checks of applicants and current employees?

Answer:
Background Checks on Prospective Employee

A best practice is to conduct an applicant background check after a conditional offer of employment has been made. While it may be legal in some states to perform a background check before the employment offer is made, there are a couple of reasons to avoid this practice.

  • First, if the background check is performed before the offer is given and results in people of color being disproportionately impacted (screened out), the Equal Employment Opportunity Commission (EEOC) and courts are likely to find that the employer engaged in a discriminatory employment practice prohibited under Title VII of the Civil Rights Act.
  • Second, running a background check on all applicants is both cost and time prohibitive.

Prior to running the background check, obtain the written consent of the applicant who is the object of the background check. This written consent should be contained in an authorization form separate from the employment application. In addition, remember that under federal law employers are required to keep any personnel or employment records they make or keep (including all application, background authorization forms, and other records related to hiring) for one year after the records were made, or after a personnel action was taken, whichever comes later. This requirement is extended to two years for certain federal contractors.

Background Checks on Current Employees

In regard to running background checks on current employees, prior to initiating annual or other periodic checks, perform a risk-versus-benefit analysis of performing the check and review applicable state and federal laws. Some of the reasons employers conduct annual employee background checks are:

  • Damage to the business (ongoing criminal activity is suspected).
  • Insurance underwriting (to maintain insurance).
  • Job performance (employee job performance is suffering).
  • Workplace security (employee is putting others at risk).

In addition, always obtain a current employee’s consent to run a background check. If an employee signed a consent to future background checks upon hiring with the organization, the employee may elect to revoke this consent at any time. Subsequently, a best practice is to obtain a new consent prior to each background check performed.

Importantly, when electing to perform a background check, all individuals must be treated fairly, consistently, and in accordance with the workplace standard regardless of race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).

 


David Katz

Vice President
VMA Insurance Services
To send your questions, write to david@vma.bz

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