Can I Do Yearly Criminal Background Checks?
Question: Can you run criminal background checks on employees each year?
Answer: Yes — but as is often the case, the devil is in the details. In some states, on-line criminal checks are possible. There is no national criminal background database available to private employers. Companies claiming to be able to provide national criminal checks on-line cannot access, for example, the NCIC system or even reliably check every state and municipality. The most reliable criminal check is directly with a law enforcement agency but in many areas that requires checking with multiple jurisdictions. If the check is made directly with a law enforcement agency, then generally the agency will require the employee’s consent, most likely on a form which the agency will provide. (Again, some states provide on-line access and consent is not required.) However, if a third party is used to conduct any employment-related background check, then the Fair Credit Reporting Act comes into play.
While a thorough description of employer obligations under the FCRA is not feasible here, the law essentially requires obtaining written permission from the employee to do the check and further requires informing the employee of the results if that information is used to take adverse action against him.
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at firstname.lastname@example.org.
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