December 20, 2010
As you are aware, the ability to do a background check on current employees will depend on whether such a check is authorized by the consent for signed by the employees. Under the federal Fair Credit Reporting Act (FCRA), credit reporting and other investigative agencies may provide background financial and personal information to an employer about an employee or applicant for a permissible "employment purpose" (15 USC 1681 et seq.). A permissible employment purpose is defined as for the evaluation of an individual for employment, promotion, reassignment, or retention.
Any time an employer uses a third party covered by FCRA to obtain background information or credit reports about an employee it must comply with the FCRA notice and authorization requirements. Many employers have individuals sign a FCRA authorization when they receive an offer employment that not only authorizes the company to obtain reports for the new employee but at any time during employment for the purpose of evaluating the employee for "promotion, reassignment, or retention" as well.
If the employer has such an authorization, it won’t necessarily be required to obtain a new one each time it wants to obtain a report on an employee. The employer may wish to have a local employment attorney in each state review the FCRA authorization forms to make sure the forms apply throughout employment.
Keep in mind that the federal Equal Employment Opportunity Commission (EEOC) takes the position that it is a violation of Title VII of the Civil Rights Act to base an employment decision solely on an applicant’s arrest record. In addition, according to the EEOC, employers may only rely on a record of a criminal conviction if it is related to the job.
Likewise, according to the Minnesota Department of Human Rights, it may be discriminatory for employers to ask employees and job applicants about their arrest records. However, questions about criminal convictions are acceptable, as long as past convictions are not an absolute bar to employment and the employer considers how recent the crime was and its relationship to the job.
No one may be disqualified from public employment, or from pursuing, practicing, or engaging in any occupation for which a license is required, because of a prior criminal conviction, unless the crime directly relates to the employment in question. In addition, public employers cannot discriminate because of expunged convictions and convictions for misdemeanors (MN Stat. Sec. 364.01et seq.).
The employer should have a policy clearly explaining its policy of annual and/or random background checks and this policy should be disseminated to applicants and employees. Additionally, the background check policy should be consistently applied to all employees.
The County of Harding NM has hired a temporary employee due to the termination of a probation employee. How long can the County retain this person as a temporary employee?