Re-screening Your Employees

You have just extended a conditional offer to a job candidate to fill that vacant position at your company. The conditional offer is contingent upon the results of his/her background check. You follow FCRA guidelines through the entire hiring/screening process. The background check is completed, and you see that the candidate has no criminal record. Your job is done now, right? The new hire has been deemed safe and his qualifications acceptable. So you won’t ever need to screen him/her again, right? WRONG.

There are many reasons to re-screen your employees:

•          Employees in safety-sensitive positions
•          Employee have contact with customers
•          Employees work with children/elderly
•          A change in employee responsibilities
•          A promotion gives an employee access to assets or sensitive employee info

Safety-Sensitive Positions

Re-screening is important in some of the high risk positions, such as transportation or any job requiring the operation of heavy machinery. In the transportation industry, keeping track of one’s driving record is essential. You don’t want a reckless or drunk driver operating a vehicle for your company. The operating of any heavy machinery can be dangerous. For the safety of themselves, fellow employees, and others, we recommend routine drug screening, another party of the screening process.

Contact with Customers

When your employees work directly with customers, you have an obligation to regularly screen your employees. This is especially important when they work inside customers’ homes. While a red flag may not have been spotted in the pre-employment background check, criminal activity may occur during the employment of an individual. A current look at an employee’s criminal history can help ensure the safety of your customers.

Work with Children/Elderly

Children and the elderly are particularly vulnerable. As an organization that deals with either demographic, it is your duty to make sure you are not putting them at risk. You have a duty to your customers to ensure that they are not exposed to someone who is a sex offender or has a history of violence. An up-to-date look at the criminal history of those who work with them is one way of protecting this defenseless group.

Change in Employee Responsibilities

Whether a lateral or vertical move is made by an employee, there will be changes in responsibilities. And since your background check should be based upon the responsibilities of the job, you may need to run a different or more thorough search on the employee.

Access to Assets or Sensitive Employee Info

A promotion typically means more access to capital, other assets, or sensitive employee information. Because of this, employers may want to initiate a more involved background check. For example, work with the company’s finances may warrant a credit check. When the employee was hired, his background check may have consisted of only a national criminal search. This search casts a wide net, but is not as reliable as screening at the local level. Therefore, it would be prudent to order a county criminal search for a more up-to-date look at the employee’s criminal history.

A recent survey determined that only about 30% of employers have an active program for re-screening their employees. That is an alarming number. If you want to protect your company, your employees, and your customer base, it is imperative that you consider re-screening your workforce.

If you are not sure where to begin with your company’s re-screening policy, start by identifying the jobs that require re-screening. You can do this by considering the following questions:

•          What are the responsibilities of the position?
•          How much access will the employee have to assets and/or customers?
•          Is the position high-risk?

Once you have identified the situations that require re-screening, craft a written policy to handle decisions, such as grounds for termination based on the background check, and any possible disagreements that may follow.

New California Law in Effect: Senate Bill 530

Attention: California Employers

Hundreds of new laws went into effect in California at the beginning of the year. One in particular, Senate Bill 530, has a profound effect on employers and their hiring practices.

The law states “No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law”.

Basically, if it did not result in a conviction, you (employers) cannot ask the applicant about it. This applies to diversion programs as well. A satisfactorily completed deferral program is not classified as a conviction. Upon completion of diversion programs, records are often expunged. If the conviction has been expunged, you cannot ask about it. Seeing a pattern? DO NOT ask or seek out information pertaining to charges that did not result in a conviction or have been sealed by the courts.

It also states that you cannot use another source to get information on dismissed criminal charges. As a consumer reporting agency, we focus on reporting convictions. Prior to this law coming into effect, we already refrained from including anything other than charges that resulted in a conviction. This new law is aimed at employers in California who are inquiring about charges that were dismissed and things of that nature.

The law seeks to protect ex-offenders from being discriminated against in the hiring process. If an employer breaks this law, the applicant can bring action against that person to recover actual damages or $200 (whichever is greater) as well as reasonable attorney’s fees. The intentional violation of this law will allow the applicant to treble actual damages or $500 (whichever is greater) plus reasonable attorney’s fees. This intentional violation is also a misdemeanor punishable by a fine of up to $500.

As an employer, you are not privy to information regarding an applicant’s arrests that did not result in a conviction. The law is meant to give someone with a criminal record a second chance. Breaking this law can result in civil penalties. You, as an employer, are responsible for being aware of this new law. Intentionally ignoring the new law can result in misdemeanor criminal charges.

Here is the entire bill.

Texas House Bill 1188 Limits Liability

Texas House Bill 1188

This bill limits the liability of employers, general contractors, premise owners and third parties for hiring employees with criminal convictions. It was introduced in February of this year, and it will take effect on September 1, 2013.
HB 1188 states that no legal action can be taken against an employer who negligently hires an employee with a criminal record. Now before you consider calling off background checks to cut your costs, be aware that there are many exceptions to this bill.

Exceptions-

An employer may be sued for negligently hiring an employee:

I. who has committed a criminal offense while performing duties similar to those expected to be performed in the course of employment

II. who has committed an criminal offense under conditions similar to those expected to be encountered in the course of employment

III. who has committed murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and/or aggravated robbery

Even with this law in place, you may still find yourself answering for the actions of your employees. Continuing to screen your applicants will protect your company and its reputation, as well as save you from a legal nightmare. The cost of a law suit is much more than the cost of a criminal background check, so don’t put your company at risk.

Click here for House Bill 1188 in its entirety.

Richmond, CA Takes "Ban-the-Box" A Step Further

Richmond, California added Chapter 2.65 to the Municipal Code entitled “Ban the Box” on July 30, 2013. Unlike other cities, Richmond is requiring that no employer can make inquiries into past criminal convictions at any point during the hiring process. While it does not prevent employers from doing background checks, it does prevent them from using criminal records to exclude ex-cons from their list of prospective employees

Below is a map of all the states who have adopted “Ban the Box” in some way.



Unlike, Richmond, CA, the laws in other cities mainly ban the inclusion of the checkbox for past convictions on the job application exclusively. Employers are not restricted from asking potential employees about their criminal background during the interview process.  Richmond, a city inundated with high crime and high unemployment, has taken this law a step further. Employers must refrain from discriminating against people with criminal records.

There are some exclusions from the new ordinance, of course. Jobs with children, seniors, and other “sensitive” jobs are special cases that are not included in the ordinance.

Richmond City Councilwoman, Jovanka Beckles, believes that it levels the playing field for all races. Beckles was one of the six people who approved the ordinance in a 6-1 vote in favor of the law. Those who voted in favor of the law believe that it gives ex-convicts a fair chance to have a place in our workforce, instead of turning back to crime.

The lone councilman opposed to the ordinance, Tom Butt, told a local newspaper, “It will be a nightmare to enforce and will discourage business and investment in Richmond.”

You can read city ordinance 14-13 N.S. here.


Thoughts? Good? Bad? Will this become a trend in places with high crime and unemployment?