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Here is how HR can help prevent the missteps that could cost your company big in court.
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Fear of negligent hiring and retention litigation is a hiring manager’s worst nightmare and the most compelling reason to conduct in-depth criminal records searches of job applicants. A multilevel jurisdictional criminal records search is the greatest protection an employer has against defending a negligent hiring lawsuit.
Commit to First Line of Defense
During the first, most basic background check of a job candidate, a company’s screening provider should positively identify the prospective employee through a variety of database resources that confirm the person’s name, date of birth, Social Security number and residential address history. In combination with gathering information from an employment application, criminal searches should include additional names that the subject is known by to ensure a comprehensive and complete search.
Once a positive identification has been made and address history has been established, a county-by-county criminal search should be conducted. It has become an industry rule of thumb to conduct countywide and/or statewide criminal searches of names and addresses for at least the past seven years because of Fair Credit Reporting Act (FCRA) and state reporting guidelines and restrictions.
Certain industries and government mandates require employers to search records back even further. Criminal information beyond seven years can be used and reported; however, regulations and restrictions on use of this information vary from state to state. Make sure the screening provider has a firm understanding of those requirements.
Due diligence also can be obtained by searching the federal court system, which is broken down into districts that should coincide with the counties that are being searched. A search of federal records may reveal kidnapping, money laundering and other high-level crimes tried within the federal court system that a countywide or statewide search would not provide.
Look Beyond the Obvious
The next level of due diligence would include “filling in the gaps.” Following thorough screening of where a candidate has lived and worked, look into areas where he or she may have traveled or visited. For example, if a candidate lives close to a county or state border or travels as part of their daily activities or business functions, a very important piece of the applicant’s history might be missed if this is not researched. Practicing due diligence under such circumstances would include casting a larger net across the country or even the world. Many criminals are known to be transient and may travel from town to town to maintain a low profile and to stay ahead of the law.
Firms that truly provide due diligence screening use aggregated electronic criminal information as part of their searches. Over the past decade, a small number of firms have compiled databases that include criminal offense information from local, county, state and federal repositories. Records include misdemeanor and felony records, prison inmate data, sex offender information, and national and international terrorist watch list and sanctioned parties data. The exchange of electronic criminal information from the United States and international agencies has provided a new level of screening in a cost-effective manner.
Verifying additional information such as past employment, education and other candidate credentials will provide additional validation and will enhance due diligence and your overall screening program.
Ensure Responsible Use of Electronic Data
While aggregated criminal data is widely available, never rely on this data as the only source of criminal information. The information that comes out is only as good as what goes in, and that can vary depending on the primary input sources.
For example, not all states have a true statewide database that includes felony and misdemeanor records from all reportable counties. In addition, few states provide their information to firms outside of the law enforcement community. There are also concerns with how often information is updated.
If offense information is found, it should be verified with the original reporting court jurisdiction to ensure the highest level of accuracy and to pass muster with FCRA Section 613(a) for federal compliance and employee use. Only a fraction of all county information is available for non-law enforcement use or is accessible to the public through these databases. This can limit a company’s ability to meet its due diligence goal. Therefore, use electronic data wisely and only in conjunction with other, more comprehensive county and state records information.
Beware of Screening Impostors
Industry sources project that there are over 1,800 firms that offer some type of background screening. Employers need to determine whether their screening firm provides FCRA-compliant searches for permissible employment purposes. Screening firms should be following all federal, state and local laws in regards to employment screening. This factor should be the basis of due diligence screening and selection criteria for a reputable screening firm.
Finally, be leery of web sites that claim they will provide instant access to information after the submission of a credit card number to open and activate an account. Web sites that do not provide contact information or a phone number for the ability to quiz a live body for compliance information should be considered suspect. Firms that understand your best interests will require vetting, an executed service agreement, and training to confirm that you are a legitimate user and will not provide access to sensitive consumer data at the drop of a hat.
Every employer has the social responsibility and obligation to provide a safe work environment for their employees and others within their care. Employers who conduct thorough and multilevel criminal searches as part of their due diligence screening will greatly reduce the propensity of huge liability and the cost of negligent hiring litigation. Partner with a reputable and knowledgeable screening partner to get the job done.
Robert Capwell is chief knowledge officer of Employment Background Investigations Inc. and co-chair of the National Association of Professional Background Screeners’ Board of Directors.
Editor’s Note: This article should not be construed as legal advice.
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