Background Checking Considerations in Recalling Employees

As the COVID-19 pandemic continues to ravage the United States, businesses of all types are trying to negate the economic impact to keep their organizations viable during this time of challenge. With furloughs and lay-offs having been at record levels one of the issues employers are grappling with are when and how to effectively recall employees. One aspect of this decision is whether or not they should conduct background checks on recalled employees.

If the decision is made to rescreen recalled employees employers should approach the recall process in much the same way they would approach a reduction-in-force selection process.  Decisions should be based on legitimate business necessity factors and designed to avoid discriminatory practices. Ideally, a written policy and procedure should exist to guide management actions. Of course, recalls of bargaining unit employees are governed by a collective bargaining agreement.

Should You do a Background Check on a Recalled Employee?

There are many reasons why conducting another background check on recalled employees is a good business practice and may be in your organization’s best interest.

At the top of the list of reasons are that it may be required by law, a contractual obligation with clients or a collective bargaining agreement. 

Independent of the above, you may simply choose to do another background check on recalled employees you call back to work based on an established written policy for rescreening or continuous monitoring employees. If your organization already is doing continuous monitoring, you likely already have a policy and mechanism in place to address deploying the process as a part of the recall process. If not, now may be a good time to implement a continuous screening and monitoring policy, procedure and process.

Whatever you decide to rescreen or not do not fall prey to thinking that because your employees successfully passed a pre-employment background check that all is well and there is no need to check their background again. Using this line of thinking would be faulty because employee behaviors can change over time. A general, rule of thumb, is that for leaves less than six months it is probably not necessary to rescreen, however, this is a judgement call by each organization if not governed by law, contractual obligation or a collective bargaining agreement. Whatever you decide be sure to apply the decision consistently to avoid any issues of discrimination.

Common reasons to re-screen include:

  • Avoiding fraud
  • Preventing identity, intellectual and physical property theft
  • Reduce likelihood of workplace violence
  • Reduce risk and liability

If you decide to rescreen recalled employees, be sure to follow your policy and all relevant local, county, state and federal guidelines. 

Essential core requirements for rescreening include:

  • obtaining a signed, standalone authorization granting consent to conduct the background check
  • providing your recalled employee with a copy of their rights as they pertain to an employment background check, especially a copy of the Fair Credit Reporting Act requirements.

The issue of employee consent is an important one that can be tricky when it comes to rescreening. If your background screening policies include an ongoing consent for the term of the employment relationship or employees have signed an authorization that authorizes on-going background checks then proceeding without an additional authorization is permissible. However, if the policy does not contain this language, is outdated or you authorization for a single background check, a new authorization under the FCRA must be obtained prior to conducting the background check. In some states, like California and Vermont, it is required that employers always get a new authorization, regardless of the language in their policies.

It is very important to keep in mind that if the background check comes back negative you cannot simply terminate the employee. You must provide the employee, in writing, the results of the background check report and give him/her a chance to exercise their legal right to refute inaccurate information in the report as provided by the Fair Credit Reporting Act (FCRA).

It is also possible that you may need to conduct an “individualized assessment” if a criminal offense is detected which provides the employee the opportunity to present their case on why they should be hired back despite the criminal record. Be sure to follow Equal Employment Opportunity Commission (EEOC) guidance on – Individual Assessments.

If ultimately, you decide not to recall the employee based on the information provided in the background check report be sure to follow the pre-adverse action and adverse action requirements of the FCRA.

One additional consideration, given that courthouses are not immune to the impact of the pandemic on their employees and operations it would be wise to make all recalls “provisional” pending the results of the screening. This way your employees will understand that their return date is based on a successfully completed background check.  

Drug Screening

Similar to the background screening process, an employer needs to decide if they will conduct drug test on recalled employees. Closely following your drug testing policy, local, state and federal legal requirements and/or contractual agreements are important.

Generally, “it is unnecessary to “update” pre-hire drug tests upon return from furlough although this is an employer’s decision to make. Time considerations and the nature of the work are key factors in making this decision.

According to the law firm Littler, in their article – The Next Normal: A Littler Insight on Returning to Work – Recalling Furloughed Employees and the Rehire Process – “employers wishing to conduct drug tests of returning workers who were furloughed (with ongoing employment), should first check their policies and local law. Some employer policies allow for tests of workers who have been on leave or otherwise not working for a certain period of time, but most do not.

If that is the case, a policy update may be needed. State and local drug-testing laws also may limit or prohibit tests of current employees on a suspicion-less basis, even if the employee has been on leave and away for work for some time.

In contrast, workers in roles subject to mandatory drug testing – for example, tests required by the U.S. Department of Transportation (DOT) – may need an updated “pre-hire” drug test, or, if they were selected for random testing while on furlough, may need to be sent for a random test upon their return to performing safety-sensitive covered work. If the employee was removed from the company’s random testing pool while on furlough for a period of at least 30 days, a new DOT pre-hire test may be required.”

Re-Performing I-9 Checks

Litller also said, “If a furlough was treated as leave and as if employment continued, and the employee had a reasonable expectation of employment at all times, employers can continue to use the I-9 form that the employee completed at the beginning of employment. If the employees were placed in terminated status, however, an employer can either re-verify the I-9 or complete a new I-9. If the employee was in terminated status and completed their I-9 more than three years prior to the rehire date, the employer must have the employee complete a new I-9 form.”

The U.S. Citizenship and Immigration Services (USCIS) website provides guidance on each of these situations.

As would be expected, situations and workplaces vary, accordingly employers that are faced with deciding whether to recall employees and need to decide on whether they will conduct background and/or drug checks should consult legal counsel to assist them in this decision-making process.