05 Nov Criminal Background Checks, Part I
A while back I had a post on this blog about “ban the box,” which is a legislative effort being undertaken nationwide to eliminate the question on job applications related to criminal history. Check out that post here, but this post targets the issue of criminal background checks: can an employer conduct criminal background checks on its current employees?
There are a number of legitimate reasons why a performing a criminal background check might be a smart policy. First and foremost, most of your insurance carriers may require a criminal background check if you have employees out in the field, for example employees who may be in client’s homes or offices largely unsupervised. Think about companies who serve home repairs or air conditioning units, or cleaning personnel who are in various offices. Those individuals are often unsupervised and they are in a position where criminal activity could occur without much effort.
So, it is not unreasonable for insurance companies to need information to write an appropriate insurance policy. Criminal background checks are also very important if you are dealing with certain kinds of activity such as money management or working with youth. For example, it is probably not a good idea if you operate a store where there is a lot of cash being exchanged to have an employee who has a conviction for embezzlement.
I do want folks to be careful: criminal background checks often have or could have a discriminatory effect. There are segments of the population for whom criminal activity or arrests have occurred as a result of various societal pressures, which are beyond the scope of this particular post. But, nonetheless, criminal background checks are permissible and legal. Companies could avoid a discriminatory policy by requiring all employees to have a background check after the offer letter has been presented.
The follow up question is whether an employer who already employs people can conduct criminal background checks on a random basis. Unlike drug screening, this is a little more difficult to justify all the time, but it is relevant. One option is to occasionally conduct criminal background checks on your current employees. One method is to ensure that the conduct of the background check is relevant to the job at hand. The question largely becomes what to do if somebody who you already employ fails a criminal background check. If it is relevant to the job, it certainly is a condition which would bring up employee discipline or even termination, particularly if that employee is a position of trust.