Can You Run Background Checks on Current Employees?
Millions of companies regularly conduct background checks on job candidates because they know these screenings can help to mitigate their hiring and subsequent employment risks. Today, a growing number of companies are implementing policies to run continual background checks on current employees.
Our clients know that hiring an employee who is not qualified, commits fraud, abuses fellow employees, abuses vendors or abuses customers can cost a company millions of dollars and possibly criminal penalties. Pre-hire checks help reduce the potential for a bad hire.
Clients also regularly ask us whether they can run background checks on current employees, implementing a policy of continual monitoring and screening. They wonder if it’s helpful, legal and how to begin.
The short answer is yes, it’s helpful and legal. Just as pre-hire background checks help mitigate workplace risks, so do running background checks on current employees. And yes, they are legal when they follow applicable laws and statutes.
The Benefits of Background Checks on Current Employees
You might not be aware of the benefits to your company of a properly designed policy of continual background checks on current employees. As an employer, it’s up to your organization to ensure the safety and security of every employee, business partner, customer, supplier and the public.
Pre-employment checks may not be enough to ensure the proper level of safety and security due to…
- Changing Circumstances — We all hope that our lives and the lives of our friends, family and employees get better over time, but that is not the case for some people. Gambling problems, substance abuse, increasing debt, psychological issues, spousal abuse, criminal activity and other danger signs can all begin or increase over time.
- Latent Reporting — Not all jurisdictions and organizations update their records as rapidly as you might think. Some small towns and underfunded counties may be delayed in processing criminal records by many months, if not years. Similarly, licensing organizations may only update their records monthly, quarterly or even annually which means that your pre-employment background check may not have the most recent information.
- Legal Liability — If an employee does something criminal while employed by your company that can be construed as something that you ought to have known, your company may be legally liable.
Beyond that, running background checks on current employees may help you Lower Liability Insurance Costs. A quick call to your insurance agent may help you discover if this is true for you and your policy.
Should Your Company Run Background Checks on Current Employees?
Jennifer Comsky, a leading HR attorney and partner in the firm of Levinson Arshonsky & Kurtz, LLP, says that, “While regulations may differ from state to state, in general, there is nothing preventing an employer from conducting routine background checks of current employees. Such verifications can serve to exculpate employers in the event of transgressions by their employees.”
So the answer is not “should,” but “when” you should start your own continual background check program. Uber is an excellent example of a company creating such a program. Uber has run millions of background checks on new employees since its founding. In 2018, they began a new Safety Initiative, which includes annual criminal and DMV background checks — two types of screenings that are relevant to its specific type of business.
When designing your continual background check program, choose those checks that are relevant to your company and the specific positions. We can help you determine what you should be looking for if you have questions. Common examples include:
- DMV and insurance records for delivery drivers and others you put on the road (sales, service, installation and others)
- Drug-related charges
- Changes to other criminal records
- Domestic violence reports
- Sexual assault charges
- Significant adverse changes to credit histories
- Substance Abuse
How To Start a Program to Check Backgrounds on Current Employees
If your company does not already practice obtaining background checks on existing employees, you should change that now in order to:
- Provide a safe working environment
- Mitigate financial, legal and reputational risk
- Mitigate workforce risk
- Be alerted when a crime happens after the initial hiring
- Give managers and supervisors the ability to handle issues promptly
Here’s a sobering statistic highlighting the need for a continual background check policy. A 2015 study of over 400,000 employees determined that 12% of the workforce is likely to be arrested over the next 5 years and 20% arrested over the next 7 years. Assuming your workforce matches these findings, will you be able to identify impacted employees with your existing background check policies?
So, how do you implement this new practice?
Ms. Komsky says, “Employers are cautioned that as with all employment policies, any background “re-checks” must be done on a non-discriminatory basis. Recommendations are to conduct such background checks for all employees on a certain anniversary date, upon job promotion or reassignment, or other event that can be objectively applied to all employees, or a certain class of employees.”
Taking Ms. Komsky’s advice into account, there are five steps or components to get started:
- Determine the frequency of the checks. They could be done annually, quarterly, randomly, before promotions or raises, or only for cause.
- Identify the checks that apply to your business.
- Update your employment policies and ensure compliance with all applicable laws and statutes.
- Notify employees of the change well in advance of policy implementation.
- Modify your hiring practices to include consent for continual background checks.
And Ms. Komsky goes on to say that, “Of course, in the event of any doubts as to legality of any employment action, employers are encouraged to consult with counsel.”
Call Background Runner
If you haven’t yet begun running background checks on current employees, now is a great time to start. Continual monitoring for drug use is commonplace today, and continual monitoring of background changes is close behind. Want to know what types of background checks are relevant to your business and how to implement such a policy? Call Background Runner to discuss a custom background check program for your business. Contact us online or call us at (800) 322-2850.
