As background checks become more widespread, it's important that consistent policies be put in place.
Background checks, now a standard element of youth-sports programming, are beginning to trickle down to other sports and recreation markets. In July, for example, the National Association of Collegiate Directors of Athletics announced that it was on the verge of contracting with a security firm that would perform background checks on prospective scholarship athletes.
While researching the histories of athletes might strike some as strange, this is just one of the many misconceptions people have about background checks. The fact is that all types of businesses can use background checks, if only to verify that a potential employee is being truthful about his or her past.
Businesses need background checks to ensure they hire the right people the first time around. Not only can background checks save business owners from hiring unsuitable employees, they can fulfill "due diligence" requirements, thereby protecting business owners from negligent hiring or retention lawsuits. The potential costs of a laissez-faire attitude are huge -- the average jury award for negligent hiring is more than $800,000.
The first step in creating a financially and legally rewarding background screening process is to understand your needs so you can ensure they are met. In other words, as an organization you must identify your greatest concerns, whether they are to reduce turnover, avoid (actual or threatened) violence in the workplace, control theft, mitigate training costs or increase productivity. As part of this assessment, you should also attempt to create a strategy that allows you to identify whether pre-employment screening is helping you achieve your objectives.
For example, if a concessions operator's primary goal is to reduce theft, inventory management procedures should be in place when screening begins in order to quantify the expected reduction. next step is to perform the actual background check -- to find out if an applicant is telling the truth on his or her rIsumI and application. However, this should not be done until after the applicant has been offered the job.
Why? Because to perform a thorough background check, you need to ask for his or her date of birth -- and if you ask for a date of birth before offering him or her a job, you've just opened yourself up to a possible age-discrimination lawsuit. It is imperative, therefore, that you complete a background check after a job offer is made, but with the offer contingent upon him or her passing the background check.
To complete a background check, you need three other pieces of information: a name, a social security number and the applicant's addresses for the past seven years. This information is used to validate identity, usually the first type of check you will want completed. If the person's identity is in question, you clearly have a problem, and will not want to proceed with any other checks until the identity issue is resolved. background checks can protect you against liability by showing a reasonable effort was made to protect your current employees, customers and patrons, you need not perform every type of check for every open job title. After identity, the typical types of background checks include: criminal, civil, employment, education, licensing, motor vehicle, credit and references.
Here's how the different searches are performed (except where noted, the records involved are public and available to anyone with a signed release):
- Identity. This is done electronically and almost instantly through a series of database checks. Because this typically requires a proprietary software program, this background check is usually outsourced.
- Criminal. This is done at the federal, state and county levels -- all of which maintain separate records. National Criminal Search is an online database that can identify records that need additional research. For complete legal coverage, however, you need to go to the source documents and not rely on databases that can become outdated quickly. should check all counties in which the person has lived, worked or studied; crimes are usually committed close to home or work. Nine percent of the public has been convicted of a crime.
- Civil. Civil records are also kept at the county level. Currently, no connection exists between the record departments. As with criminal checks, for complete legal coverage you need to go to the source documents and not rely on databases. Civil records give a complete picture of possible employment-related lawsuits for anyone considered for a supervisory position.
- Employment. Previous employers are called to verify titles and salary. As this is a time-consuming task, this type of screening is usually outsourced. Ignore it at your peril: According to the Society of Human Resource Development, one-third of applicants misrepresent their work history.
- Education. Verification of education levels and degrees, which is becoming a standard part of the screening of collegiate coaches [see "Bio Hazards," April 2002], is done in person with the learning institution.
- Licensing. Verification of professional licenses is done in person with the licensing board.
- Motor Vehicle. Driving records can be released to appropriate consumer reporting agencies with a signed release.
- Credit. As with motor vehicle records, credit records can be released to appropriate consumer reporting agencies with a signed release.
- References. These are done, typically in house by phone, to verify work habits and skills.
You'll also need to decide on a consistent standard for disqualifying applicants. You will probably want to disqualify individuals from consideration if their crimes fall within the following categories (time limits should be calculated from the date of conviction or the date of release from jail, prison, probation or parole, whichever is most recent):
- No Time Limit (Felony). Homicide/attempted homicide, manslaughter, child molestation, robbery, arson, felony assault, felony battery, felony drug conviction, or any two convictions for any felony offense, violent or non-violent.
- Ten-Year Limit (Felony). Burglary, fraud, crime against property, theft or other non-violent felonies.
- Five-Year Limit (Misdemeanor Violent). Simple assault, sex offenses, weapons violations, child abuse, domestic violence.
- Five-Year Limit (Misdemeanor Non-violent). Fraud, theft, gambling, drug possession, driving while intoxicated, prostitution.
Consistency is necessary at all stages of the screening process. Make sure that in every case, you:
- Require a completed job application.
- Have applicants sign an authorization to perform a background check or drug test consent (separate documents).
- Make your employment offer contingent on the successful passing of the background check (and, if applicable, drug test).
- Compare the information returned from your screening against that found on the application. If there are gaps or omissions, resolve them before you proceed with hiring that particular applicant.
If you did a thorough check, but failed to uncover any negative information, you should not be held liable for making a negligent hiring decision. If you do have procedures for performing background checks, make sure you follow them, review the information collected and contact the appropriate references. Nothing is worse for an employer than to discover that negative information was returned during a background investigation but never revisited before the individual was hired.
A person with a criminal incident in his or her past may well be a good match for the right position. Obviously, the type of conviction matters -- a speeding ticket does not necessarily indicate a propensity to harm others and probably does not warn of future violent behavior. But beyond the severity of the crime, be sure also to consider the currency of the conviction. If an incident occurred seven years ago and will not specifically affect a person's job duties, you may want to have a policy in place in the event that the screening turns up negative information that would not preclude the person from performing identified job duties well.
Assuming that the applicant disclosed the information -- applicants who falsify their applications should be eliminated from consideration -- you should convene a panel to decide whether or not you should hire him or her. Assuming your organization has a human resources department, security and a legal department, representatives of all three should meet with the hiring department, and at least three out of four should agree on accepting the risk of hiring the individual. Ultimately, the responsibility to assume the risk should come from senior management.
Whatever hiring policies you put in place, the important point is that such information should be known up front. A two-figure background check might well be sufficient to ward off a six-figure jury award.
