Donald J. Dymer
What you don't know can hurt you - especially if what you don't know is that your new hire is a sex offender, embezzler or worse!
Negligent Hiring, Negligent Retention, and most recently Negligent Referral lawsuits have become a favorite of plaintiff attorneys. For example, if an employee assaults another employee, customer, or anyone else in the course and scope of his employer's business, chances are that the liability sits fair and square with the employer. The situation is exacerbated if the aggressor has a history of like behavior. The assumption will be that the employer should have known about the previous behavior. In the absence of some very compelling evidence to the contrary, there is very little chance of convincing a judge and jury otherwise.
Time and again, employers hire bookkeepers and others with access to corporate assets without carrying out comprehensive background checks. They obtain temporary and "temp to perm" personnel from staffing agencies without making sure that the scope of the background screening meets their criteria. This often results in embezzlement and theft.
In any of these circumstances the results can be catastrophic, resulting in the closure of the business, or in the extreme, the death of a fellow employee.
For a very small fee relative to the potential losses, employers should make sure they hire people who can not only do the job, but are of the character desired of employees in the organization culture.
Remember: Good Character makes for Good Employees.
Objectives of Background Screening
Background Screening is more than criminal record checks. The objective in carrying out
comprehensive background screening is to ensure that the applicant is who he/she says they are, that they have done what they say they have done, have attained the level of education stated, are licensed to do what they do, and that they are of good character. An additional tool of great value is an Attitude and Behavioral Assessment that establishes cultural fit within an organization.
Not all jobs are the same, therefore background screening criteria should vary to match the job requirements. The make up of the screening criteria for a given job should be the same for all applicants for that job and have a relevance to that job.
For example, the fact that an applicant has a conviction for driving under the influence (DUI) should not generally preclude him/her from a clerical job, but the presence of a conviction for assault may well do so.
Most screening programs will consist of a basic mix of criteria for all applicants, plus other inquiries for specialist or executive job positions. The following are the main criteria of employee screening programs:
Primary Screening Criteria
Identity Verification - Social Security Number Validation and Residence Trace
This is where the process begins, and establishes the truthfulness of the candidate. The applicant’s social security number (SSN) will be validated, and a list of previous addresses used will be provided. These may be compared against those provided on the application form and is the basis for criminal record checks. The inquiry may also provide the applicant's phone numbers, as well as a search of the index of social security numbers subject of death filings. Any discrepancies provide an additional avenue for research.
Criminal Record Checks
The FBI criminal records (NCIC) are only available for designated professions and some government departments. These are typically in the security, banking and some other specialist industries.
Federal Criminal Records
These are generally cases of interstate criminal activity or where charges of a serious nature have been brought by Federal agencies. It is not common practice for searches to be conducted in these district courts for everyday jobs.
Statewide Criminal Records
As the name implies, these are records compiled by state repositories (usually the state police) from information on arrests received from police and sheriff's offices within the state. These records may not contain all arrests, may not contain dispositions, and may not contain records of arrest warrants issued at the county courts. They are not available as public record in the following states: AZ, CA, HI, LA, MS, MT, NJ.
County Criminal Records
The county court is where most criminal cases are conducted. Generally viewed as the "core" of the criminal record check, these searches are usually carried out in the stated counties of residence for the past seven years. This search consists of an examination of the court's index of cases by subject name and is the most reliable of all types of criminal record checks available. A thorough search of felony and misdemeanor records is best accomplished by professional researchers who know the idiosyncrasies of each particular court.
Note: It is very common for employers to ask applicants if they have ever been convicted of a felony. It is also very common for plea bargains to reduce charges from the serious felony to a lesser misdemeanor to facilitate cases through the courts.
Discovery Criminal Record File
This database search reviews over 140 million records from 36 states, which may include state, county or Department of Correction records. This search is not compliant with the Fair Credit Reporting Act. As such, any information found must be validated at the source of origin. This is a valuable "wild card" in the event any addresses slipped through the net in the application or residence trace search. This search also returns records of state sex offenders in 45 states.
Foreign Criminal Records
Not all countries allow access to criminal records for public purposes. Those that do have different rules of access, different levels of reliability and some involve high cost and long turnaround times.
Motor Vehicle Driving Record (MVR)
If the applicant or current employee is likely to drive a company vehicle or their own vehicle on company business, it is essential to obtain knowledge of their driving history. The employment of an unlicensed driver, or one with a bad track record, places the employer in a very precarious situation in the event of an at fault accident.
If the applicant or current employee is likely to have financial responsibilities in the job position, then a credit check should be carried out at a national credit bureau. This check may give details of credit debt referred to collections, bankruptcies, previous employment, as well as account status, amounts owed, payment history and rating.
It is not uncommon for an applicant to exaggerate the job position held, the level of pay, or even the dates of employment. It is essential to verify employment details provided as a test of honesty and to ensure they have the experience they claim. The information obtained may include job position, salary, reason for leaving, eligibility for rehire, reasons not to hire, and overall performance.
Employment or Personal Reference
This is an important area to consider in background screening. After all, who knows the applicant better than those who have supervised him/her. A telephone interview is held with previous employers (or personal references) and behaviors and character are investigated. Interviews will focus on indicators such as reliability, performance, team-player attitudes, trustworthiness, and more. The referee is also asked for any reasons why this person should not be hired. All but seven states have statutes to protect those giving references, provided that they are true and not given with malice or with intent to prevent the applicant from getting hired. This dispels the myth created by attorneys that the absolute minimum of information should be given. In fact, failure to disclose may shift the liability for the malfeasance of the applicant to the referee.
Some positions require minimum academic qualifications, such as a bachelor's degree, or greater. Many applicants do not possess these, but in order to obtain employment, will lie about their qualifications. In today's high tech world many applicants are "self taught" or have attended courses without having earned a degree in the subject matter. Often, applicants can fool an interviewer or pass a simple aptitude test. It's not until a number of months later, after investing in their training and development, that their true capabilities are discovered. The degree claimed is found to be history, geography, or some other perfectly good, but totally unrelated, degree. These applicants and others often resort to degrees obtained through the Internet from "diploma mills". These organizations provide totally worthless diplomas from colleges and universities with very similar names to the real entity. They even offer transcripts and will verify the degrees. Your professional background screening company monitors these and makes sure that bogus degrees do not facilitate bad hiring decisions. Currently there are over 300 active diploma mills, with new ones appearing daily.
Professional Credential Validation
Jobs requiring state or federal licensure or certification present a need for the claims of the applicant in this regard to be validated. The license is validated with the appropriate state or federal issuer and may provide such information as issue date, type, expiration date, status, and any disciplinary activity.
Drug or alcohol abuse presents safety and health risks not only for the drug user but also for any other person in contact with or affected by that user's work. An employer has a responsibility to all of its employees to provide a safe workplace and also a responsibility to the public to ensure their safety. The necessity of having drug-free and alcohol-free employees at work requires the employer to adopt a plan.