Can we run a criminal background check on a temp employee or applicant during a try out?
We never run background checks. We currently have a temp employee that we know has been arrested and currently dealing with this situation. From other employees we have heard some statements that make us want to look into his background more. We also have another candidate coming in for a two day try out for an open position. Our manager would like to do a criminal check on this candidate too from some statements and he was referred by the temp employee. If we have never done any background checks on any employees or applicants before can we legally run a check on these candidates? Could this be considered discrimination? Do we need written notification that we are running these checks?
Comments
Ohio.
Isn't it pretty much public record anyway? Do we need written notification to him if we do a county search?
On the temp employee --> You need to be careful here. Because by doing certain employer duties, you might be moving your company into more of a "joint employer" or "co-employment" relationship with the leasing agency and the temp employee. And joint employer can plan into a lot of benefits/laws/etc. (I just did some research on another forum about how temp ees/agencies influence FMLA). I would push back on the leasing agency to make sure they are keeping their records/checks up to date and informing you about certain incidents that would affect your business. Let them deal with the liability. That is one thing you are paying their service fees for!
For both employees --> Also you need to have an authorization signed allowing your company to do a background check. I suspect the one he signed for the leasing company would NOT cover what you want to do. If you do make a decision based on the results, you need to follow the FCRA for notifying the person. And I would start a policy that you will do a background check on all new hires. If you do it for just these two, then yes, it could be considered discriminatory especially if they are in any protected class (race, religion, etc).
HRforMe is exactly right that this could be considered discriminatory. You can't pick and choose which candidates you do a background check on for a particular position. If you run a check for one then you run a check for all candidates that reach that point in your hiring process. Your policy should state at what point in your hiring process you run the background check and what you are looking for. Depending on state law, you may not be able to run the check until after an offer has been made and then also you may only be able to take certain things into consideration. Your best course of action is to decide what you are looking for based on business necessity. An example is if you are a bank then someone who has been convicted of stealing money, writing fraudulent checks, etc. would not be eligible for employment. If you work with children then someone that has been convicted of a crime involving children or a sex offense would not be eligible for employment.
Information I have says that employers in OH are prohibited from inquiring into arrests a person has. Employer has the right to inquire about convictions for specific crimes related to the job. The reference is the OH Rev. Code Ann. 2151.358, 2953.32 and 2953.33, also the OH Civil Rights Commission Guide.
From the BLR website (for subscribers):
In Ohio, there is no state law prohibiting the use of conviction records in employment decisions. In fact, criminal background checks are required by federal and/or state law for certain types of jobs. However, according to guidelines issued by the Ohio Civil Rights Commission, it is discriminatory to ask job applicants about arrests that did not result in convictions, unless a bona fide occupational qualification is certified in advance by the Commission (OH Rev. Stat. Sec. 4112.02). State law also provides that a job applicant may not be questioned about any arrest for which the records have been expunged. If an employer asks about expunged records, the applicant may respond as though the arrest never occurred (OH Rev. Stat. Sec. 2151.358(I)). It is permissible to ask prospective employees about convictions. The only exception is a conviction record that has been sealed, unless the employer shows that the record has a direct and substantial relationship to the job in question (OH Rev. Stat. Sec. 2953.33). Employers should keep in mind that the federal Equal Employment Opportunity Commission (EEOC) takes the position that records of a criminal conviction may only be considered in making employment decisions if the conviction is job related.