I ran a background check on an employee I just hired and discovered that she faces serious criminal charges pending a hearing but has not been convicted. Some of the charges (to name a few) are assault in the first and second degree and theft over $500. Technically she didn’t lie on the application because she has not yet pleaded guilty or been convicted. But I don’t want to employ someone who has the potential to commit these types of crimes. What do I do? — Anonymous in Santa Cruz
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Do either your job application or your background check authorization form ask the applicant this question: “Are you currently released on your own recognizance, currently out on bail, and/or do you have any criminal matters pending against you?” If you asked and the candidate stated “no,” the person lied. (This is assuming that whoever performed your background check has the correct person, based on information such as name and date of birth on the pending criminal records.)
If you asked that question and the person lied, you may fire her if you have language stating that any knowing misrepresentation, falsification, or material omission on either the application or the background check authorization form is grounds for immediate dismissal, regardless of when you discover the lie. In this case, you would be terminating the new employee based on the lie rather than on the pending criminal charges.
If you have not asked the applicant a question similar to the one above, you may still have some recourse. Employers may consider the nature and gravity of charges with respect to pending criminal cases. Industry standard is to simply ask the candidate about the pending charges and discuss what the probable outcome will be. This can get awkward, however—not to mention legally dicey. Your best bet, assuming you don’t have evidence that the candidate lied about pending charges, is to talk with a local labor attorney.
Jared Callahan is a licensed private investigator in California and is director, client services and production, for Employment Screening Resources in Novato.