I’ve just found out a staff member has a criminal record – what do I do?

Late in 2017 it was announced Paul Manafort – the former campaign manager for US President Donald Trump – has been indicted by a grand jury on a number of counts, including conspiracy against the United States.

Always ready for a tweet, the President was quick to respond on Twitter stating: “Sorry, but this is years ago, before Paul Manafort was part of the Trump campaign…”

Which does beg the question: how can an employee’s past actions and indiscretions can come back to haunt you?

Back home in Australia the “citizenship seven” fiasco in federal government also reiterated you can’t be too careful, or too cocky, when it comes to checking workplace eligibility.

When Greens senators Larissa Waters and Scott Ludlam were found to be dual citizens, deputy Prime Minister Barnaby Joyce made the following comment:

“Unfortunately, ignorance is not an excuse, you’re in strife and as I said, there’s nothing malicious about it, but (Larissa Waters and Scott Ludlam) were outside of what Section 44 explicitly says.”

Of course, just four weeks later, Joyce discovered he was also a dual citizen and had to fight to return to government in a by-election in his electorate of New England.

So how can you ensure your pre-employment checks are watertight to avoid any embarrassing situations down the track? And if several members of parliament didn’t even know they had dual citizenship, how can anyone possibly predict the varied array of issues that could arise when it comes to workplace eligibility?

  1. What pre-employment checks can I legally make?

Potential employers are entitled to request a range of pre-employment checks, including academic qualification, criminal records and medical assessments. For certain positions, specific checks/qualifications will be necessary, such as Working with Children Check, responsible service of alcohol or a working in confined spaces ticket.

  1. Do I need to tell the candidate what I am checking?

Yes. It is important to be transparent in the checks you are undertaking during the employment process and to give the candidate the opportunity to tell you anything about their past that might impact their performance within the role.

  1. When can I refuse employment to someone because of information I find during their background check?

If a candidate has been convicted of a crime directly relating to the nature of the work, then you are within your rights to withdraw or refuse a job offer. Examples of this could be convictions relating to dishonesty or theft within the financial sector, or driving offences for someone who will be utilising a work vehicle.  Several industries have formalised measures to check a candidates’ background in relevant areas, such as the Working with Children Check.

  1. I have recruited a new staff member but have just discovered they have a criminal record – what can I do?

Anti-discrimination laws protect employees from unfair treatment because of prior convictions. If the conviction is unrelated to your employee’s current position then there is little formal legal action you can take. Depending on the situation, mediation may be important to ensure you, your employee and other staff members are comfortable and workplace culture is not negatively affected. If the conviction relates directly to your employee’s occupation and role within the company then it is best to seek further legal and HR advice to ensure you proceed within the Fair Work guidelines.

  1. A former staff member has been charged with a crime. How do I protect my company’s reputation?

There are two components to the action you can take in this situation – HR and communication. Focusing inward on your current employees is important to ensure company culture is not negatively affected. Depending on the nature of the crime it may be pertinent to consider mediation or counselling for employees so they have the opportunity to confidentially discuss the matter.

Working with your HR and Communications team – or external specialists in these areas – it may also be pertinent to review your pre-employment procedures and ensure they cover all necessary areas. A joint effort between management, HR and communications is also vital to ensure any public comment/announcement about the situation is coordinated and effective. And finally, it’s not advisable to attempt to deflect attention from the situation by shifting focus to another person, as President Trump did on Twitter: “…But why aren’t Crooked Hillary & the Dems the focus?????”