Background Advantage

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10 WAYS TO IMPROVE YOUR COMPANY’S BACKGROUND SCREENING STRATEGY AND PROCEDURES!

• 1. What an employer is legally required to do – While anyone may search public records on anyone they want, the use of a professional screening or investigating company with a trained, experienced staff that knows where to look assures greater thoroughness and accuracy. In addition, background checking is highly regulated. Organizations face many federal and state requirements, and consumers have a full array of mandated rights and remedies. Screening firms can help organizations assure compliance with these requirements. O I does not provide legal advice but does provide legal compliance with all federal and state laws in its reporting practices and procedures.
• 2. Preventive measures to consider – Background checking can supplant an organization’s loss prevention efforts by helping provide a safer environment for employees, volunteers, and others.
• 3. Doctrine of negligent hiring – The tort claim of negligent hiring first appeared nearly a century ago, as an outgrowth of the common law fellow servant rule.1 The fellow servant rule originally shielded an employer from liability when an employee was injured by the negligence or intentional acts of another employee. Eventually, the expansion of tort law led to a redefinition of the fellow servant rule to recognize that employers had an affirmative duty to provide a safe workplace, which included hiring and retaining safe employees.
• 4. Change the application to be specific to the position the employee is applying for - It is important to remember that if your company conducts different background checks for different candidates, the type of background checks conducted should be based on the job position and/or title, not on the basis of any candidate’s individual characteristics. Subjecting applicants for the same job to varying levels of background investigation may give rise to an EEOC complaint, or, even worse, an employment discrimination lawsuit.
• 5. The need for the employer to have a background provider that has access to up-to-date information – A growing trend in screening is the use of commercially compiled databases to supplement the traditional hands-on court research. Known for providing more of a shotgun approach to screening, many of these databases are inexpensive ways to provide a look at an individual’s background. Information provided by commercial databases should not be used as the sole source of information because of potential gaps in data, and the less than timely updates in some jurisdictions. However, they still can give a greater sense of protection to an organization by throwing a broader net across the country’s criminal records. Optimal Intelligence gives you both that are FCRA Compliant.
• 6. The scope of a proper background check - Ask a Human Resources department manager what is on the top of their list of “Things to Avoid;” the likely answer will include negligent hiring charges. Increasingly common (and expensive), this cause of action is generally accepted nationwide. The rationale supporting negligent hiring cases is that an employer is responsible for unlawful or improper acts of its employees when the employer should have known better. As an example, should you hire a convicted child molester to work on the HVAC system in a school, your company could be held liable if that employee – granted access to school children – were to commit a repeat or similar offense. How courts determine that employers “should have known better” is whether a reasonable employer in a similar situation would, or would not, have hired the employee who caused the injury/damage. The “standards” of due diligence vary by industry and by the responsibilities, duties and exposure of a given position. Where no clear rules exist, successful companies should strive to maintain background screening practices that are at least as thorough as other companies in their industry and/or of their size.
• 7. To be aware of state and federal regulations and the changes there to - While emerging industry trends are helpful, there are no definitive legal definitions, nor guidelines relative to how employers should go about investigating their employment applicants’ backgrounds. Most experts merely advise employers to be consistent… and to do a little bit more than their competition does. However, just what is “a little bit more?” Even as employers are conducting more, and more in-depth, background investigations, there are, unfortunately, no “standard” or “basic” background checks. In lieu of formal regulations or recommendations, many employers use an ever-expanding collection of case law to mold their companies’ background checking policies.
• 8. The due diligence standard - Most industry analysts suggest requiring, at a minimum, a Social Security number verification and a criminal record check. Most experts agree that employers should also confirm/verify an applicant’s: 1) identity, 2) education, 3) professional licenses and 4) relevant industry certifications. The issue arises, then, how in-depth should the criminal background check be? As evidenced by recent well publicized cases, an investigation limited to a single county, or even a single state, is usually not enough. It is important to remember that if your company conducts different background checks for different candidates, the type of background checks conducted should be based on the job position and/or title, not on the basis of any candidate’s individual characteristics. Subjecting applicants for the same job to varying levels of background investigation may give rise to an EEOC complaint, or, even worse, an employment discrimination lawsuit.
• 9. The employer’s reasonable investigation duty - Smart employers aim to strike a balance between investigations that are thorough enough to avoid a negligent hiring lawsuit, and those that are timely enough to retain the best candidates. Most industry analysts suggest requiring, at a minimum, a Social Security number verification and a criminal record check. Most experts agree that employers should also confirm/verify an applicant’s: 1) identity, 2) education, 3) professional licenses and 4) relevant industry certifications. The issue arises, then, how in-depth should the criminal background check be? As evidenced by recent well publicized cases, an investigation limited to a single county, or even a single state, is usually not enough.
• 10. What to do after the employee is hired - Keep records of all background check information in the employee’s permanent personnel file. Optimal Intelligence, Inc maintains its customers background reviews in its archives indefinitely f or their immediate access. Maintain the confidentiality of all information obtained through background checks. Many employers who are concerned about maintaining the quality of their work force will conduct periodic background updates on their employees to insure that nothing has changed and the employees continue to be “fit for duty”.