Screening & SelectionTalent Acquisition

Employees Behaving Badly?

Knowing what your workforce is up to makes re-screening worth every penny.

By Audrey Roth
According to the Society for Human Resource Management, 69 percent of organizations conduct background checks. But do employers know what these background checks could find if they conducted them post-hiring? Yes, it’s true—screening your current workforce is much more complex than the initial check of potential candidates. But the benefits make it a worthy consideration.

“Bad behavior doesn’t stop just because you hired them,” says Ken Monroe, director of sales and operations of the screening, drug testing, and verification organization the Background Investigation Bureau.

A lot can occur over the course of employment. “You screen today, and that information is as good as the time that we ran it. But tomorrow that information becomes a day old. And in six months it becomes six months old. And so there becomes a need to re-screen,” informs Ben Goldberg, president of background screening, drug screening, and other HR solutions company Aurico.

The drivers to rescreen run the gamut: Maybe it has been six months or 10 years, maybe the employer never conducted a background check in the first place, maybe a criminal offense slipped through the cracks, or maybe the employee walked a path of faulty decision making since the time of hiring. Whatever it may be, it is valuable to know what activity doesn’t line up with the organization’s standards which the employees participate in.
Reasons for Re-Screening

Screening of the current workforce is a more complex step to take than the initial background checks of potential candidates, but the propitious possible outcomes drive a broad range of motives for re-screening.

Original screening information can become irrelevant. “A background check is a snapshot of data in time. It’s static,” reports Monroe. And a great deal can occur between this snapshot and present day. “A risky behavior that hasn’t been caught yet doesn’t change just because they got employed. What it means is they could get caught after they’re employed.” Think of it this way. Would knowing a certain criminal activity force an organization to alter employee access to privileged company information? If yes, then screening the current workforce is a valid consideration.

Maintaining responsible business practices. One of the best ways to avoid negative legal repercussions resulting from negligent employment is to be fully aware of any current criminal activity within your workforce. This risk can be minimized by both backgrounds screening and re-screening. Whether a criminal offense is severe or mild, being oblivious to employee crime is not an excuse. It can be as simple as allowing an employee with minimal driving infractions to continue driving a company car.

As Goldberg explains, “Take for example, if you have a sales person or a driver that’s not regulated so they’re not required to do a certain type of screen, if they get into an accident or they have some type of issue that suspends their driver’s license, they’re not necessarily going to tell the employer that they’ve had that issue. They may continue driving on company time and continuing to do that couldopen the organization up to negligent hiring risks and other types of lawsuits.”

In 2012, transportation-related incidents represented 41 percent of all workplace fatalities, according to the United States Department of Labor. Could re-screening help prevent this? That is hard to be determined, but it brings attention to the fact that injuries, fatalities, and liabilities do occur in the workplace, and employers should want to attempt to reduce this possibility as much as possible.

Formal office policies are unfortunately not always efficient. Even if there is an office policy in the employee handbook requiring staff to divulge all criminal offenses that occur during employment tenure, it does not ensure that employees will oblige.

The withholding of this information is routed in the hopeful prospect that the employer just will not find out. “Those policies are lose-lose for the employees. [In the voice of the employee] ‘If I tell, they’re going to fire me. And if I don’t tell, they’re going to fire me…later.’ So it puts them in a situation where the incentive is not to tell, and hope they don’t get caught” shares Monroe. “It’s naïve to think there’s no activity that could bring additional risk to your organization, just because you hired them. Just because you hired them didn’t mean they weren’t capable of something. Someone could have a behavior for quite some time that they haven’t been caught at yet. Everybody that speeds doesn’t get caught speeding. But sooner or later they might.”

Safety-sensitive positions require up-to-date knowledge of employee criminal histories and drug usage. When employees are consistently in a position where they could cause others and themselves harm, employers need to be aware of criminal activity that could have possibly occurred since becoming employed. “A continued employment risk is a significant risk to any organization […] especially when there’s vulnerable populations – you know, hospitals where there’s patients, or kids involved, schools, things like that,” explains Monroe. Re-screening would be beneficial to organizations that have employees dealing with vulnerable populations like children or the elderly, operating dangerous equipment, or working with secure information.

Re-screening can have a positive impact—for the entire organization. Random drug testing can be a part of the effort to encourage a positive workplace, and can actually become the push drug users need to receive help. “Company-sponsored programs have the highest success rates, they typically involve support groups involving other coworkers, you have the incentive of continued employment, typically they involve family counseling and so the employer programs are very effective,” shares Mark de Bernardo, executive director of Institute for a Drug Free Workplace, in a recent webcast marking the 25th Anniversary of the Drug-Free Workplace Act.

What to Consider
The need to re-screen can be established for companies in every industry, but in the process, employers may face some complications.

Follow EEOC Guidance. In April of 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new regulation under its “Enforcement Guidance,” that is complicating and regulating the hiring process. It mandates that employers cannot withhold employment solely based on an employee having a criminal record. So what does this mean for the re-screening practices? The EEOC encourages individualized assessments based on the specific circumstances of the employee.

Employers should considering when deciding whether to maintain or release employment:

  • Was the crime committed in relation to the nature of the position?
  • What is the amount of time lapsed since the crime?
  • What is the nature of the job?

In addition to these considerations, the individualized assessment “means notifying that employee, giving them an opportunity to explain, and considering it,” explains Gregory Dillard, a partner at Vinson & Elkins LLP specializing in employment, labor, and business disputes.

This guidance opened the door to a more relevant, accurate, and positive screening process. “What we saw is that the guidance did a nice thing for employers and screening companies alike, which is it allowed us to strengthen our ability to align our reporting with the policies that employees put in place, that align with this guidance,” shares Goldberg. “And what’s happening is, we believe that more and more applicants and current employees are getting ruled into positions, rather than ruled out of positions, because the guidance has helped ensure that they’re really looking at that individual based on the position, the age, the nature of the offense, the gravity of the offense, and the other things that align with that guidance.”

Outline re-screening policies. “Employers need to be mindful to have obtained employee consent before performing background checks,” notes Dillard. Organizations should implement policies that cover the process of screening, rescreening, and drug testing. Set standards for when re-screening should occur such as:

  • Upon being considered for promotion
  • Upon promotion
  • Upon a raise
  • Within a time frame, such as once a year

This will show employee just cause of the re-screen. This is a vital step that cannot be muddled.

As Goldberg notes, communicating these policies is one of the most difficult aspects of the re-screening process. Companies not only need to communicate their policies regarding re-screening and drug testing, but also must provide accurate insight into what occurs once the results are in.

“[Employers need to] develop policies for what is going to happen when [they] get a positive drug test or an adverse criminal record…What’s the procedure going to be in terms of giving an individualized assessment to that person?” Monroe states.

Know the law. From state to state, screening laws tend to vary. Employers need to ensure that they are abiding by the variations when they have employees in different states. The multi-faceted differences in these regulations from state-to-state can be difficult to keep up with. “Certain states require consent forms to be updated on an annual basis to do a background check, or […] when the check is being done. Other states allow you to sign it one time and keep it for the lifetime of the employment. So dealing with state specific requirements that impact screening, that’s certainly one that increase the level of complexity,” says Goldberg.

Dillard shares, “[State specific requirements] tend to differ now, a fair amount, even in states next door to each other. So for instance, in Louisiana the statutes there don’t specify which drugs an employer may test for. Similar in Texas, that’s the case, whereas in Oklahoma, right next door, the regulations and the laws define drug to mean a specific list of potential substances: Amphetamines, cocaine, PCP, barbiturates, etc. Those are the only things that can be tested for.”

These state specific restrictions requires an employer to be incredibly aware of how their background screening and drug testing procedures are conducted. Simply put: “You cannot have a one size fits all drug testing policy,” informs Goldberg.

Maintain a safe work environment. Although conducting screening of the current workforce is an attempt to maintain an impervious workforce, employees may not see it in the same light. It may feel like a violation. But if you are upfront about your policies, your employees should be more understanding. Plus it’s most important to reinforce the ultimate goal of re-screening workers: the overall safety of the workplace.

“It is a positive for everyone involved, except for the person who’s committed the crime. If you have someone who’s a violent offender who’s maybe been arrested for assault with deadly weapon, or been arrested for fighting significantly and has a propensity for violent behavior, or using his hands to hurt people, the other employees want someone like that to be discovered. They don’t want to deal with someone in a workplace that would do that,” says Monroe.

As Laura Shelton, executive director of Drug and Alcohol Testing Industry Association (DATIA) shared in a recent webcast marking the 25th Anniversary of the Drug-Free Workplace Act, “Drug free workplace programs promotes safety and have a positive impact on workplace satisfaction by increasing productivity, decreasing workplace injuries, decreasing absenteeism, and decreasing turnover.”

Although the list of necessary considerations when screening the current workforce is lengthy, the positive outcome of re-screening is worth the time and effort. As long as employers are proactive about recognizing the different steps that need to be considered, screening of the current workforce is a procedure that can utilized by employers from industries across the board.

“There is no longer the practice to only screen your applicant pool, the trend is certainly towards being mindful of who you have already employed and what positions you might be promoting them into,” concludes Dillard.

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