When employers are held responsible for untoward actions of their employees, negligent hiring claims can be costly. Even with a pre-employment background check, organizations can still face punitive lawsuits if anyone of their staff causes harm or destruction to other employees or customers. Some companies are currently using or hope to deploy periodic re-screening of employees to reduce this risk.
Here are best practices for HR professionals looking to set up a post-hiring background check policy.
How Long Is a Background Check Valid?
A background check does nothing more than capture a moment in time and what has happened up to that point. Running pre-employment background checks is a great idea to get a sense of the candidate, however, it may or may not predict the future behavior of that candidate. Therefore, background checks are valid until they aren't anymore. A good rule of thumb is that background checks can be trusted for 2 - 5 years, however, for some specific circumstances, re-screening may need to be done more often. Consider the following questions:
- Does the employee behavior seem to be putting others at risk or is the employee suspected of criminal activity?
- Has the employee's job performance suddenly changed for the worse?
- Does the business require secure access to money (finance) or data (security), people (healthcare), vulnerable population (childcare or elderly care) or does the employee require a higher level of security than when they were hired?
- Do the employee's responsibilities require driving or operating heavy machinery?
Background Check or Screening Policy Requirements
The background check or screening policy must specify the following information:
- An explanation of the purpose of the screening policy
- That a third-party consumer reporting agency will conduct the screening
- The legal obligations of the employer to protect consumer rights under the FCRA and remain in compliance with the ADA
- Asking for consent and authorization prior to screening
- Following pre-adverse and adverse action procedures
- Guidance from the EEOC to offer fair chance hiring to those with criminal records and protect applicants against discrimination
- An explanation of the record-keeping and assurance that the personal records will only be accessed by the appropriate HR or management personnel
If post-hire background checks will be used, the screening policy and consent forms must specify that authorization is ongoing or that the employee will be asked to consent again. Consent forms must be clear, concise, and separate from the screening policy or employment applications.
A post-hire background check policy may need to be a distinctly separate policy from a pre-employment background check policy. For instance, a post-hire policy may require a termination clause if the re-screening reveals something that would affect employment with the company. The termination clause should also include pre-adverse and adverse action procedures. A post-hire policy may also be triggered by job performance, accidents, or promotions.
Other Considerations of a Post-Hire Background Check Policy
A post-hire screening policy also called rolling or periodic background checks must be implemented with care. HR professionals must be aware if the policy is:
- discriminatory: where only some employees are screened and others are not
- costly: work with a background check company that is aware of your policy, transparent on cost and can offer volume pricing
- not relevant: if the findings do not relate to job performance
Employees may revoke their consent to be screened at any time. In that case, employers could use a 'self-report' option for employees, if there are any arrests or convictions that may impact their job responsibilities, or include consequences for revoking consent in the screening policy.
All employees must be made aware of any new HR policies that would affect them. It's advisable to have each employee review and sign the new policy during the roll-out.