Everyone knows background checks are important before hiring a candidate, but many companies conduct what are called post-hire background checks. These are regular screenings conducted even after employees have been with a company for many years that check for everything from criminal activity to illegal drug use. Post-hire background checks can help your company avoid being legally liable for employee misconduct, and can also help maintain a safer, more comfortable work environment for everyone. However, as with pre-employment screenings, there are some important moral and legal factors to take into consideration.
Below, we will provide a checklist to follow to help your company create a fair, legally compliant pre-hire background check policy.
What Is A Post-Hire Background Check?
A post-hire background check is an umbrella term referring to rolling background checks that occur regularly after a candidate has been hired. Schools may regularly make sure teachers’ licences are up to date, for example, and some companies may conduct routine drug tests every few months. Some businesses provide more in-depth screenings than others, however, and what you include in a post-hire background check depends on your industry, legal rules and regulations, and your company’s specific needs.
Post-hire background checks can reduce your chances of negligent retention, which is when your business is held liable for retaining an employee who engaged in criminal behavior. For example, an employee could crash a company car while driving on a suspended licence. If your company did not realize their licence was suspended and take appropriate action, you could end up in serious legal trouble.
While high-risk jobs tend to be more likely to require post-hire background checks, any company can conduct them if they feel it is necessary. If you do decide to use post-hire background checks, you need to make sure you are in full legal compliance and that all your employees know how and why they’re being subjected to additional screenings.
Post-Hire Background Check Policy 2022 Checklist
Update Your Background Checklist Policy And Inform All Employees
Not only is this typically legally required (which we will go over in more detail below), keeping employees informed on rolling background checks is simply the right thing to do and better for your company culture. Transparency and open communication shows your employees respect. If your screenings seem random or invasive, this could affect long-term employee retention.
Ideally, your employees should sign paperwork consenting to post-hire background checks when they are first hired. However, if you are starting up a new policy in 2022 regarding regular post-hire screenings, make sure all current employees are informed and sign any legally necessary documents.
This should be more than just a one-off email or memo. Have a company-wide meeting to go over the new policy and welcome employees to ask any questions that come up. The more communication, the better when introducing new background check policies.
Determine What Your Post-Hire Screening Should Include
Post-hire screenings typically aim to maintain a safe work environment long-term. Post-hire screenings typically include things like:
- Drug Testing
- Criminal History Checks
- Civil Court Checks
- DMV/MVR Search
- Professional License Verification
In some cases, regularly re-verifying education, licenses and certifications, and some aspects of employment history is also recommended. There have been cases (like this story of an M.I.T dean who fabricated her education for almost 30 years) where employers miss red flags the first time around. If employment at your company is contingent on having very specific qualifications, it does not hurt to periodically double check employee credentials. Some certifications may need to be renewed regularly, furthering the need for routinely re-verifying some information.
Ultimately, what you want to include is up to you, so take some time to consider what would make most sense for your industry. In addition to your company’s needs, you also need to consider the legality of the checks you’re considering, which brings us to our next point.
Make Sure You’re Legally Compliant
Regulations surrounding background checks can be quite complicated and vary from state to state and (sometimes) from industry to industry. All companies, for example, must follow the Fair Credit Reporting Act Guidelines when it comes to background checks, which stipulates – among other things – you must obtain written consent for background checks, applicants and employees must be notified if friends, neighbors, or associates are contacted, and you must notify candidates if information obtained will lead to an adverse hiring decision.
Specific states have their own rules regarding background checks, including the consequences for failing certain screenings. In Vermont and Massachusetts, for example, employees cannot be fired for failing a drug test if they agree to rehabilitation.
While most of these legal regulations limit what background checks can do, some industries actually require certainpost-hire screenings. The Department of Transportation (DOT), for instance, requires regular drug testing for safety-sensitive positions (see a full list of those positions here).
The broad point here is that laws surrounding background checks are complex and differ greatly depending on a wide variety of factors. Make sure you are compliant with all regulations and consider hiring legal counsel to ensure you have covered all your bases. You could be met with legal penalties and a blow to your company’s reputation if you conduct an illegal background check. Seeking legal counsel is always recommended when creating a new background check policy.
AccuSourceHR works with all our clients one-on-one to help ensure legal compliance during every step of the hiring and post-hiring background check process.
Have A Clearly Defined Adverse Action Policy In Place
Once you determine what you are looking for, you need to have a clear, legally compliant HR policy in place that outlines consequences for failing certain parts of a post-hire screening. You have to make some potentially tough decisions about how your company wishes to respond to troubling information about current employees, and this often affects more than just employment status. Criminal charges, accidents, and failed drug tests may come into play when making decisions about promotions and raises.
In some cases, the decision will be made for you based on legal regulations. As we discussed earlier, the Department of Motor Vehicles requires regular drug testing for safety-sensitive positions. Employees who fail drug tests must be immediately removed from the job and cannot return to work until undergoing a rehabilitation program and passing another drug test.
However, there are not always specific legal guidelines in place, and determining fair consequences is a judgement call. Not all information that comes through on a post-hire background check is grounds for termination or even disciplinary action. You will have to take a close look at your company’s values and needs when outlining your adverse action policy.
As with all other aspects of your post-hire background check policy, communicate the policy clearly with every employee and make sure you’re in full legal compliance.
Post-Hire Background Check Policy: The Bottom Line
The screening process is not over just because a candidate passed the initial background check. For safety-sensitive jobs especially, regular screenings are important to maintaining your work environment and protecting your company’s reputation.