In today’s world, where immediate access to information is literally at our fingertips, the need for speed can sometimes supersede due diligence, but in the absence of thorough background checks on potential employees, haste can result in waste – and sometimes worse.
Background screening is not a “one size fits all” situation; therefore it is imperative that employers consider the specific risks associated with each position when determining the searches and testing conducted in a pre-employment evaluation. Rule of thumb is the greater the risk involved in a particular position, the more comprehensive the background check.
Healthcare workers, for example, often have unsupervised contact with people in their vulnerable states; as such the risks associated with a “bad hire” could literally be a matter of life and death. And while drug tests have become standard for many posts – regardless of the industry – a typical 9 panel drug test may not be adequate for healthcare employees with access to a large variety of potentially addictive medications.
The financial industry is another where the more background screening done, the better. For someone whose past might involve “creative” accounting, a position that provides access to revenue may prove to be a temptation hard to resist.
There is no such thing as being too careful when it comes to background screening and as such, at the top of the allowed list of screening sources for most employers is a search for criminal records. That said, there are a myriad of ways to search for criminal records and it is incumbent on an employer to be educated on these screening sources, regardless of whether or not they retain a firm to conduct background searches.
Significant differences exist between a national database search, a real-time county level search and a state repository investigation. Each has its advantages and disadvantages as well as considerable cost differences.
Private databases – even those that claim to be national in scope – have their limitations; in addition the prospective employer is responsible for verifying the information at the original source, which is typically the court.
The optimum place to search for a criminal record is the courthouse where the record originated. A county or federal district court search yields the most accurate and up-to-date criminal record information available and should always be used to verify results from quicker, but often less reliable database searches.
Having the correct identification information is vital to conducting a criminal search. People hiding a past they know might prevent them from acquiring employment can be adept at keeping a secret. In fact, reporting a false date of birth may be enough to elicit a “no record found” on a report, despite the existence of a serious criminal conviction. The potential for harm is palpable if an employee becomes involved in a workplace act of violence, theft or other criminal offense because the employer didn’t have knowledge of past similar incidences.
Without question, the Internet has made the screening process inexpensive, but relying on this method could end in a costly catastrophe. Without knowing what to look for and where to find it, information can be confusing and misleading.
Obtaining a consumer report has become commonplace when conducting a background check on a prospective employee, but be advised that under the Fair Credit Reporting Act (FCRA), employers must have the written consent of the potential employee before seeking the report. If a decision is made against hiring the individual based on consumer report information, the would-be employer is obligated to provide the applicant with a copy of the report and inform him/her of their right to challenge the document. Please note that some states incorporate more rigid rules limiting the use of consumer reports than does the federal FCRA.
Legally obtaining accurate, up-to-date information is only half the battle. When a consumer report contains data about an arrest or criminal conviction you must keep in mind Equal Employment Opportunity Commission (EEOC) guidelines when making a hiring decision. A policy that states, in essence, that an arrest or conviction is an automatic disqualifier can quickly lead to trouble with the EEOC. Policies regarding hiring (or not) those with a criminal conviction must be relevant to the position and consistent with business necessity. Thus, a recent conviction for DUI will likely be relevant to a pizza delivery position while perhaps not so with a cashier or receptionist job.
The EEOC updated their longstanding guidance in 2012, strongly suggesting employers take it a step further before making that final hiring decision. Individualized Assessments are designed to allow each applicant an opportunity to explain extenuating circumstances, underscore rehabilitation efforts or point out similar employment held, post-conviction, with no undesirable consequences. It’s arguably in society’s best interest when ex-offenders are gainfully employed. That doesn’t mean a convicted thief should be hired to work as a bank teller as soon as they are released from prison. The EEOC wants to make sure that a convicted thief can find an appropriate means to earn an honest living and not be automatically branded as unemployable for life. Individualized Assessments are one means suggested by EEOC to make sure your policies are applied evenly and consistently while allowing room for hiring otherwise qualified applicants who have made mistakes in the past.
Employers can find help from various sources to stay out of the crosshairs of the Consumer Financial Protection Bureau or the Federal Trade Commission (primary enforcers of the FCRA) as well as the EEOC. Check with a labor law attorney to make sure your policies and procedures are compliant and legally defensible. Your background check company should also be able to offer advice about legally obtaining and interpreting the information you need to make sound hiring decisions.
The importance of conducting comprehensive background screening cannot be overstated. Equally important is the need to fully understand how to legally apply the information contained in a background check report in the hiring decision process. Take the time to become familiar with the fundamentals of these vital searches, particularly if the position to be filled is one of trust and high responsibility. It is an investment in time and resources that will prove to be worthwhile.
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