Ask The Expert: When should we run background checks of applicants and current employees?

A best practice is to conduct an applicant background check before the employment offer is made. While it may be legal in some states to perform a background check before the employment offer is made, there are reasons to avoid this practice. First, if the background check is performed before the offer is given and results in screening out applicants, an employer could be engaged in discriminatory employment practice prohibited under Title VII of the Civil Rights Act if any protected group has been disproportionately impacted. Second, running a background check on all applicants is both cost and time prohibitive.

Prior to running the background check, obtain the written consent of the applicant. This written consent should be contained in an authorization form separate from the employment application. In addition, remember that under federal law employers are required to keep any personnel or employment records they make or keep (including all application, background authorization forms, and other records related to hiring) for one year after the records were made, or after a personnel action was taken, whichever comes later. This requirement is extended to two years for certain federal contractors.

When running background checks on current employees, always obtain a consent to run a background check. If an employee signed a consent to future background checks upon hiring with the organization, the employee may elect to revoke this consent at any time. Subsequently, a best practice is to obtain a new consent prior to each background check performed.

Importantly, when electing to perform a background check, all individuals must be treated fairly, consistently, and in accordance with the workplace standard regardless of race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).

Mayar Mahmoud