EMPLOYEE BACKGROUND CHECKS: WHAT CAN AN EMPLOYER DO?
One of the dilemmas facing employers and employees alike is whether to conduct – or agree to – employee background checks as a part of the hiring process. In the current economy, employees are less likely to decline permission for a background check because they need the job. And employers are less likely to require a background check because of the costs associated with conducting the check.
This article briefly addresses some of the rules governing employee background checks, and also addresses some of the reasons employers may want such a check and employees may object to such a check.
RULES GENERALLY APPLICABLE TO VARIOUS BACKGROUND CHECKS
Drug Testing
Pre-employment drug testing is permitted, and hiring can be made contingent on the employee passing the drug screen. The specific rules are set forth in Georgia law at O.C.G.A. §§34-9-10 et seq. To require such testing, the employer must give advance written notification of the test, the consequences of a positive test result, and the consequences of a refusal to submit to the test. The test results must be kept confidential. Any job announcement must disclose the drug testing requirement, and a copy of the employer’s complete substance abuse policy must be made conspicuously available to employees and job applicants at the company’s premises. Additional requirements apply and should be discussed with counsel before the policy is implemented.
Federal law also governs drug testing in certain industries. Those requirements should be addressed with counsel in industry-specific discussions with employers and employees.
Criminal Background Check
The State of Georgia requires applicants for certain types of licenses to pass a criminal background check prior to obtaining the license. Examples include applicants for a license to practice law, to work as a mortgage broker, or to operate a check cashing service.
Applicants to purchase a firearm must also pass a criminal background check.
Georgia law also requires that all employees of a day care center pass a criminal background check.
Other private employers can also require a prospective employee to pass a criminal background check and condition employment on the prospect passing the check. Prior to implementing a criminal background check requirement, employers should consult with counsel for guidance on industry-specific procedures to follow.
Credit Check
As with criminal background checks, employees and prospects can be required to submit to credit checks as a part of the application process for certain licenses, public positions and private positions. The specific requirements for a particular industry should be discussed with counsel.
WHAT ARE THE BENEFITS AND RISKS TO THE EMPLOYER?
The employer is wise to require a drug test and a criminal background check because evidence of drug use and/or a history of criminal behavior may indicate that the employee has a history of either dishonest or violent conduct and consequently would be a risky hire. An employer should try to weed out potentially dangerous employees prior to hiring them, and these two types of checks will assist the employer in doing that.
The employer should not, however, assume that a “clean” drug test and a clear criminal background check prove that the employee will not cause any problems, as a prospective employee could be just as unreliable even if he/she has never been “caught” before. For that matter, an employee with a history of drug use and/or a criminal record could have cleaned up his/her act and turn out to be a model employee if given the chance. Therefore, although a drug test and a criminal background check may provide useful information as part of an evaluation of a potential employee, in many instances the hiring decision should not rest solely on the information obtained from these checks.
Another potential benefit to the employer from requiring job applicants and current employees alike to submit to drug tests is that the employer can in some circumstances qualify for a discount on worker’s compensation insurance premiums. The specifics of such a discount can be discussed with the insurance carrier. Counsel should be consulted regarding the legal requirements associated with implementing such a program.
The argument in favor of a credit check is that a prospective employee who has poor credit is (1) less likely to be reliable than someone with good credit, and (2) more likely to be tempted to do something such as steal a customer’s credit card information because of the economic pressures on the employee. This analysis ignores the facts that (1) poor credit sometimes results from circumstances beyond the employee’s control, and (2) an employee is not necessarily less moral simply because he/she has poor credit. In other words, poor credit is not always an indicator that someone is unreliable, dishonest or immoral, and there are plenty of good and honest employees in various professions who happen to have poor credit. An employer may pass up a perfectly good and reliable worker by denying a job to someone purely on the basis of poor credit. Nevertheless, the results of a credit check may be one of many factors that an employer should consider when making a hiring decision.
What this analysis means is that, although an employer may benefit from conducting a drug test, a criminal background check and a credit check prior to hiring an employee, the results of these tests should merely be some – not all – of the factors that are used in most hiring decisions. Counsel should be consulted regarding the use of such checks in specific situations.
WHAT ARE THE BENEFITS AND RISKS TO THE EMPLOYEE?
The primary benefit to the prospective employee from consenting to one or more of these background checks is that many employers will not consider an employee for hire if the employee declines to submit to one or more of the checks. If he or she wants the job, he/she will consent.
The risks to the employee are (1) invasion of the employee’s privacy, and (2) an adverse result that prevents him/her from being hired. The issue of invasion of privacy is a serious one and a reason that many people object to these types of checks. But, the trend seems to be in favor of these sorts of checks, and those who object on grounds of privacy are unlikely to win the argument in many jurisdictions.
If for any reason the prospective employee is concerned that adverse information will come to light as a result of a drug test, criminal background check or credit check, it would be wise to “come clean” to the employer at the outset. If the problem is in the past but is still likely to come to light during the check, the prospective employee and employer can discuss the specifics of the problem and try to come to an agreement regarding how to handle it in advance. The goal of such a conversation should be for the prospective employee to still have a shot at employment and for the employer to receive sufficient explanations and assurances to be comfortable doing the hiring.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation.
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