KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Employee background checks
October 3, 2020
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Employee background checks
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Ken
We are in the process of looking into opening an office in another state. We need to hire some people. What is the best way to go about getting Social media information about the person we wish to hire? We wish to look into their account to see if there is any behavior that might be detrimental to our business. We also wish to do this for new hires and continued employment in our main office.
Thanks
Mike
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Response
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I got a call the other day from an alarm owner who got a nasty letter from a lawyer complaining that this alarm company advertised for help and included in the ad that candidate must pass drug and criminal background test. Apparently it's not permitted to inquire about these attributes, according to the lawyer. My legal advice to the alarm company owner who called was to respond to the lawyer with just two words, just 7 letters. Fortunately we have far more sensitive lawyers in K&K's Employment Department [smarter too].
It may be true that employers can't ask about drug and criminal records. In fact I routinely delete that from the Help Wanted ads on The Alarm Exchange, for two reasons. One, I'm not sure if you can ask about drugs and criminal record freely, and two, in licensed states there is generally a background investigation by the licensing authority that includes criminal background check. Alarm companies can't [or shouldn't] hire convicted criminals unless the person has received a Certificate of Relief [might be called something else in your state] whereby the person's rights have been restored. Any business, but particularly the alarm business, takes a great risk hiring drug users or criminals. I suppose there are levels to both of those categories, but I think the bar is pretty low beyond which the person shouldn't be hired. Testing for pot is different than testing for some harder drug. In an interview you should be able to tell if the person is impaired, at least enough not to hire them. Criminal background is probably a less protected right; you can ask about criminal convictions [not arrests] and that shouldn't change unless socialists after election change making American great again to making America crazier than ever.
The security industry is in a different position than a lot of other businesses and you do have to be careful who you hire.
So, I don't think it's improper to access a candidate's social media, facebook, twitter, etc [I actually don't know the others but I know there are plenty]. You can access any public forum without consent because anyone who posts there has given up any expectation of privacy. I confess that I don't do the hiring in my office anymore and when I do interview a candidate I probably ask lots of improper questions: like can you even do this job? Do you speak English? Certainly you can request that a candidate consent to an investigation, and with consent, hire them. Be mindful that discrimination laws apply to race, religion and a few other protected classes, but you can still refrain from hiring someone you don't think can do the job or you just don't like. Seriously, if you are looking for employment law advice contact K&K's Employment Department. Be prepared to pay for the legal advice, because this article is all you get for free.
If anyone uses a particular program or service for background checks and wants to share it, let us know.
One more point. Once you hire someone make sure you get the Employment Agreement signed. The best time, though, though any time is better than never, is when you first hire the employee. Unless special arrgangements are made the employment will be "at will" and a mistake in hiring can quickly be corrected.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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