Q: We currently run background checks on all potential employees, and one particular offense/conviction for which we deny hiring is anything sexual in nature. We ran a background on a current employee (prior to hire, and everything returned clear). We have since received notification from another employee that the individual hired may have been convicted of a sexual offense after being hired. Can we legally run another background to verify? – Cortney, Texas
A: Yes, you can, but you should be sure you are following the rules in conducting the background check, and using the results in a manner that is consistent with the law.
Whenever you conduct a background check using a credit reporting agency (i.e., an outside background check provider) that will aggregate results for you, you need to ensure you are in compliance with the Fair Credit Reporting Act (FCRA). (If you conduct the research yourselves, the FCRA may not apply, but consult with counsel about your practices to be sure.) As you currently conduct such checks on applicants, you are probably familiar with the consent forms and notice of rights that must be provided to anyone subject to those background checks. The FCRA is still relevant with respect to background checks conducted on current employees. Therefore, if you want to conduct a background check of a current employee and you have no reason to believe that the employee has engaged in any wrongdoing related to his or her work, then you must ensure that the employee has authorized the check. Pull the original signed consent form and see if it allows your employer to conduct checks both pre- and post-hire. If not, you will have to get the employee to sign a new authorization to conduct a background check to ensure compliance with the FCRA.
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The other issue is how the information is used. As you may be aware, the Equal Employment Opportunity Commission has issued guidance warning employers that policies that disqualify individuals from employment based on their criminal history may have a disparate impact on minority employees, inasmuch as non-white persons are both arrested and convicted at a rate that exceeds the white arrest and conviction rate. In this case, inasmuch as the individual is currently an employee and the conviction, if it exists, would be quite recent, concerns about disparate impact doesn’t seem likely to prove significant.
You also must comply with any state law on the use of arrest and conviction information. Many states and an increasing number of cities have adopted laws that restrict an employer’s ability to decline to hire or employ individuals on the basis of arrests and/or convictions when the conviction is unrelated to the type of work performed. You don’t say what sort of work your organization does, or how you define “sexual” offenses, but I can imagine some sex-related offenses that might be considered less of a risk in the workplace than convictions involving violence-for example, a statutory rape conviction versus an armed robbery. For that reason, I suggest that in general, as you evaluate your options, you take into consideration not only the nature of the work but how the nature of any criminal conviction bears upon your workplace and the job in question.
