As part of the overall hiring process, background screening of applicants is an integral part of the on-boarding process. Criminal history, employment verification and drug testing are usually part of the initial background screening process. Based upon the background screening report, along with other hiring criteria established by dealership management, the applicant is either hired or rejected. If the applicant is hired, usually the employer does not conduct additional background screening of its employees for the time the employee remains employed with the dealership.
To that end, an employer usually does not pay attention to the activities of its employees outside the scope of work hours and rarely, if ever, conducts subsequent background checks of its current employees. Failing to monitor employee behavior outside the scope of working hours may place an employer in civil liability jeopardy.
An employer is unlikely to know about an arrest of an employee unless it impacts the employee’s work schedule or other business-related responsibilities. If an employee is arrested for a crime, an employer may inadvertently find out, but this does not happen often. Without an employer knowing an employee was arrested, this lack of knowledge might set the stage for a civil lawsuit should the employee engage in some type of misconduct while working.
For example, an employee driving a dealership car gets into a crash while working and a subsequent post-accident drug test determined the employee was under the influence of an illegal drug or alcohol. However, the dealership was unaware that the employee had been recently arrested for possession of an illegal substance or driving under the influence, which could then give rise to a lawsuit.
Ongoing, daily criminal records monitoring services provide an employer with the peace of mind that should a current employee be arrested outside the scope of his/her employment, the employer would be notified within 24 hours of the arrest. The fact that a person was arrested does not mean the person has been convicted. However, knowing an employee has been arrested provides necessary information for the dealership management to know what transpired and how that arrest may impact the employee’s employment status with the dealership. Furthermore, current arrest information can assist management in deciding what intervention may be necessary to help the employee.
Once an arrest is revealed via the daily criminal records monitoring service, and the dealership anticipates taking some type of punitive or remedial action against the employee, per the Fair Credit Reporting Act, the dealership must confirm the record through its background screening provider. This confirmation requires the background screening company to verify the record in the county it originated from. Once the verification is complete, the dealership can then determine the best recourse for the company and the employee.
Also, it is important that Human Resources review their respective background authorization and disclosure forms to ensure there is a provision that allows the dealership to conduct background checks on applicants and, if employed, for the tenure of their employment with your organization. This “evergreen” language grants permission to the dealership to conduct background checks on an employee without requiring the employee to sign another authorization form or provide a new disclosure form each time a background check is done by the dealership.
It is wise for a dealership to have policies in place to deal with circumstances of this nature, so employees are aware of the “evergreen” provision of the background authorization form as well as the repercussions if an employee has been arrested while employed by the dealership.
The author of this article is not an attorney and offers no legal advice. The contents of this article should be reviewed by your corporate attorney before taking any action based on its content.
Click here to view more solutions from Andrew Scott and Scott-Roberts & Associates, LLC.
