While most employment contracts contain safeguards that allow you to dismiss an unsuitable employee, it’s equally as important to have rock-solid processes in place for handling potential hires that ‘fail’ a background check (for lack of a better word).
Implementing background checks for both existing and potential employees comes with a wealth of challenges. Apart from the ‘who, what and when’ of conducting due diligence on your staff, establishing fair, consistent and transparent procedures for what happens when a background check does not pass the muster is just as important. Getting this part of the process wrong has the potential to leave your organisation vulnerable to some costly and resource-sapping litigation – the kind of risk you aimed to minimise the organisation’s exposure to in the first place.
There is a good percentage of job ads in the marketplace that specify, “Any offer of employment is subject to satisfactory policy clearance” (or wording to similar effect). There is also a good percentage of employers in the marketplace that believe this caveat covers them for dismissing the employee or potential employee in the event that a police check reveals a criminal history.
But what do you consider unsatisfactory?
For instance, what if an employee can boast an unblemished history but got up to some youthful indiscretions decades ago? What if their criminal history is just one unfortunate public drunkenness offence after a Christmas party celebration? These are questions that need to be considered when making employment decisions. The answers also have significant impact for employees already working for you if you are also introducing police checks for existing employees into the workplace. Think about it: is a disclosure of this nature grounds for dismissal or could you be opening your business up to a discrimination case if you choose to terminate that person’s employment?
Online retail giant Amazon recently raised the ire of a number of civil rights organisations in the U.S. after the company’s decision to implement background checks on their employees saw the widespread termination of black and Latino employees who, prior to Amazon’s decision to implement police checks, had not experienced any job performance issues.
If your organisation takes a ‘zero-latitude’ position – i.e. any record of criminal behaviour is grounds for dismissal – then this position needs to be made clear to potential employee as early as possible in the recruitment process. While adopting ‘zero-latitude’ eliminates any grey areas from the process, be careful – you could also be missing out on a valuable candidate because of a criminal history that has no real bearing on their ability to do their job.
On the other hand, if your organisation is prepared to overlook a criminal history that has no impact on the role they will be performing (for example, the applicant has a DUI charge but they’re applying for a clerical or administrative position) then your policy must also communicate this clearly. Of course, if an applicant reveals criminal issues that make them too big a risk, you are not obliged to employ them. Removing as many ‘grey areas’ as possible, however, will help you justify your decision.
Additionally, it’s important not to use an employee’s probationary status as a dismissal trigger for an unsatisfactory criminal history check without a consistent and defined policy backing you up. The best way to avoid such an issue is to undertake a police check on a candidate before any offer of employment is made, probationary or otherwise. This way, you avoid having to justify your reasons to the candidate and, in fact, the results of the police check itself do not even need to be discussed.
Background checks could be one of the most crucial components of your recruitment due diligence but, far from being just a ‘tick box’ exercise, they need to be considered properly in accordance with your entire employment policy. Depending on the job and industry mandates, just because an employee or potential employee has a criminal history should not necessarily equate to instant fail.