Background Screening Policy: The Employer’s Rights

As an employer, you want to protect your employees from workplace violence or other unsafe situations. So naturally you decide to conduct routine background checks on prospective employees to ensure you don’t hire someone with an unsavory past.

But it isn’t that easy. When conducting background checks, common sense can go a long way toward keeping you out of trouble, both in the courts and in protecting your workplace and workers.

Every case is different, and you should consider the individual circumstances of criminal cases while being mindful that a background check could inadvertently single out a class of people protected by the Equal Employment Opportunity Commission. A background screening policy can ensure that your company stays within its legal limits.

When conducting background checks on potential employees, consider the job for which you are hiring and the individual’s record and circumstances, says Scott Barer, a California-based employment attorney. For example, while a prospective employee’s background in domestic violence may not be enough cause for denial to hire, if someone has a history of taking a gun to work, you might want to rethink hiring them, Barer says.

Also, Barer says, you have to consider that one type of violence, such as domestic violence, may not translate into workplace violence.

“Employers need to ensure that their workplaces are violence free, but they have to make sure people’s rights aren’t violated,” Barer says.

In the case of a prospective employee who has a propensity to bring firearms to work, Barer says he would be more likely to tell a client not to hire the individual.

“I’d rather fight that battle to protect my employees, because it’s work related,” he says.

In the same way, while the existence of a theft conviction for someone who will work on the factory floor may not be enough cause for denial to hire, you obviously don’t want that person keeping your books, Barer says.

“If someone made a mistake as a kid, [and] they have paid their debt to society, those are factors,” Barer says. “You have to make an assessment as an employer about how likely it is that they will do something. Part of it is context.

“Many states have rules in place regarding background screening policies for employers, and federal rules can apply, as well. But there are companies that conduct background checks, and Barer advises that you spend the money on those, rather than trying to keep up with state and federal laws and the ensuing paperwork yourself.

“There are a lot of hoops to jump through,” Barer says. “These people do it for a living.

“One rule you have to be aware of is the federal Fair Credit Reporting Act, which calls for written approval from a potential employee or current worker. If their credit history is even a partial factor in the decision to promote, hire or any other employment action, they have to be notified under the act.

Regarding the prospective employee with a criminal background, “Look at the context of what he did. Was the person doing it because he was addicted and now he’s clean and sober? Is he in a 12-step program and has a sponsor?” Barer says.

But, he says: “Reasonable minds can disagree. Part of the process is the employer using common sense. The employer has to look at context, and everything else that goes with it. Has he cleaned up his life? Sometimes you have to take a chance on people.”

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