Edge Information Management, Inc.

Best Practices In Employment Screening

By Norm Gagnon Vice President of Compliance, Edge Information Management, Inc.

ore and more employers are using pre-employment
background checks as an effective tool for limiting
negligent hiring exposure, wrongful termination lawsuits,
sexual harassment incidents, financial loss, false claims, theft, and
time wasted in recruiting and training the wrong candidates. There
has been a steady increase in the number of companies conducting
criminal background checks on potential staffers since 1996 and there
is no indication the trend is slowing.
Pre-employment criminal background checks promote a safe and
potentially profitable workplace. In 2003, a wake-up call was sent
to service firms sending employees into peoples homes. A
California jury determined a carpet cleaning company had to pay
$9.38 million in damages to the surviving spouse of a woman who
was killed by one of their employed carpet cleaners. The negligent
carpet cleaning company did not obtain a background check on the
employee, who had previous multiple robbery convictions. The
employer was held responsible for their employees actions. Dean v-
Oppenheim Davidson Enterprises Inc.
Obviously, companies must weigh the costs of demonstrating due
diligence by running complete and effective background checks
against the risk of employee wrongdoings and potential lawsuits.
There is a wide variety of information that can be obtained
concerning job applicants, i.e., criminal history, driving history,
credit reports, social security verifications, professional license
verifications, reference checks and many more. However, this white
paper will discuss the critical component of almost any complete and
effective background screening process the criminal record search.
The Fair Credit Report Act governs pre-employment screenings
(including criminal records) obtained from outside agencies referred
to as Consumer Reporting Agencies (CRAs). This federal law sets
forth various guidelines and rules for pre-employment background
reports, called Consumer Reports. It also provides privacy protection
to the applicant and sets forth requirements for the outside agencies
to furnish the most accurate and complete information possible.
Also, there are a handful of states that have their own specific laws
that regulate pre-employment screening within their state. These
states laws can further limit information to be provided to the
employer based upon the nature of an offense and/or time
restrictions.
An applicant must sign a written consent/release form before an
employer requests that an outside agency conduct a criminal records
search as part of the applicant analysis. If a criminal record is found,
applicants must be given the opportunity and a reasonable amount of
time to review the criminal information; determine if the information
is accurate and up-to-date; and then respond/notify the employer or
the CRA of any inaccurate information. This is done before any
adverse action decision (not to hire) is made final. The applicant
must also be given a copy of their legal rights.

Employment Screening Firms (CRAs)
There are a number of outside agencies (consumer reporting
agencies) that can conduct and obtain criminal records and offer them
to employers. All should offer competitive pricing, acceptable
turnaround times, and accuracy. However, its essential the
following questions be answered before the employer chooses a
background-screening firm:
Does the background-screening firm
Have the expertise in deciphering criminal reports?
Have the knowledge to offer direction and guidance on
compliance with applicable federal and state laws?
Have the knowledge to review and train the employer on
handling disclosures, releases, FCRA disputes, and adverse
action procedures?
Continually double-check their court researchers, against
known records, on their accuracy and turnaround times?
Have the ability to adapt and incorporate the employers
specific needs and requirements into their overall
computerized system package?

All time is valuable, and the less time that the organization can take
to make good and responsible hiring decisions, the quicker vacant
positions can be filled. However, sometimes there is a fine line
from the rationale of conducting a solid background screening
assessment to just having a piece of paper in the employees file to
meet company/statutory policy requirements.
Unless the employer is in an industry that regulates employee
background screening, most organizations have leeway when it
comes to how a search is conducted and might not realize this when
shopping for background screening.
Therefore, another very important question is - Does the employer
know the root source of where their criminal background screening
records are being provided from and what specific information that is
being provided? Guaranteed this question will be asked if the
employer is ever subject to litigation for negligent hiring. For
example a criminal search called a Florida Statewide Criminal
Search could consist of one or more of the following:
o Florida Department of Corrections (DOC) search this search
would not provide arrest records nor convictions where personal
liberties are not restricted (incarceration, probation, etc.).
o Florida Administrative Office of Courts Criminal Data Data
was last updated in late 2003. Some background screening
providers continue to sell this data.
o Proprietary database search from a data mining company,
(the so called National Background Check) Many of these
providers can parcel out searches just to report results from a
single state, i.e., Florida. Tip: Not all Florida counties
including FDLE sell or provide their criminal data to these data
compilers.
Utilizing consumer reports that include criminal records is a great
way to screen potential employees and current employees as well to
limit the employers employee liability risk. This paper only
scratched the surface of incorporating criminal records as one of the
various searches that can makeup a complete background screening
package.
In choosing a background-screening firm to provide not only criminal
reports but also various other consumer reports, consideration should
be given to their accuracy, knowledge, history of service, turnaround
time, and price.
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