Criminal Background Checks

AACCCUA

We have just begun conducting criminal background checks as a condition of employment on applicants who have been offered and have accepted positions with us. Is it legal to ask a current employee to sign a consent form allowing us to check his criminal background history? (We had not begun the checks when he was hired.) His supervisor says he has reason to be suspicious of his background which could affect his job performance. Would it be legal to include a provision in our procedure to request an employee to sign a criminal background check consent form if a supervisor has an employment-related need to know?

Don D

I feel sure that are one or two states where it might be illegal to terminate an employee for later learning of some prior illegal conduct. I doubt AR is one of them. But, if you are going to use a third party to conduct what's called a 'consumer report', including criminal history, you are required by the Fair Credit Reporting Act to acquire the person's consent to do that and if rejected or terminated because of the contents of the report, he must be given a copy of the information upon which you based your decision. Arkansas is an 'At Will State' and criminal records are public information, so probably the worst you could run into would be loss of the unemployment insurance decision.

I recommend you get your labor attorney's advice before implementing such a policy for 'current' employees.

I'm also wondering what kind of prior conduct your supervisor might think would impact the current or future performance of his employee.

hhaynal

My understanding from your post is that all future hires are subject to a background investigation check, but that all current employees are being grandfathered in without the necessary of undergoing the background check. EXCEPT you have decided to single out this particular employee based upon "his supervisor (who) says he has reason to be suspicious of his background..."

I would NOT go down that road and single out this particular individual. I believe you would be better served to advise the current population that the new background security check effective ..... will apply to all new hires as well as current staff. As a result, a form will be send around to each individual who is to sign and return to HR. Should any adverse information arise, HR will discuss with employee, blah, blah, blah, and all information will be held strictly confidential except as required by law, etc.

I also reiterate the advice to check with your legal counsel on this matter.