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BACKGROUND CHECK
There’s a strong backlash against employers who
lie or remain silent
when asked about previous employees. Know what’s
legal to say and do when
hiring and referring, so you won’t become part of
the garbage glut.
Background
checking, from a public perspective, is a mysterious, possibly invasive
technique
used by employers to check out job applicants. On the other hand, the
public,
not unreasonably, expects employers to consider the safety of those who
patronize
their business.
The
Occupational Safety and Health Administration, the Food and Drug
Administration,
the Federal Aviation Administration and other federal agencies
oversee
the workplace and other aspects of public safety, but no federal or state
agency
exists
to protect the public from employers hiring criminal, unethical or
potentially dangerous
employees.
There exists, instead, piecemeal records and information, and spotty
support by
federal
and state legislation. Little has been done to help an organization
protect itself or the
public,
which has been endangered time and time again. A short list of recently
documented
public-safety
accidents includes:
•
substance-abusing train drivers who cause fatal accidents;
•
incompetent airline pilots who crash making routine approaches;
•
drunken crane operators who rain destruction on pedestrians;
•
clergy, scoutmasters and school teachers who molest children;
•
medical personnel who beat, rob and intimidate patients in hospitals and
nursing
homes;
and
•
violent police officers who attack their already submissive quarry.
Lacking
an oversight agency or centralized records of job applicants, each
employer is
responsible
for checking relevant information for individuals under consideration for
employment.
Conducting background checks protects both the employer and the public
from
dangerous applicants. If employers can get accurate information,
background checking
can
be a lifesaver!
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Many
employers don’t know the law and mistakenly fear that they’re liable
for an unfavorable report about
a
past employee. Some routinely give good references to get rid of
unsatisfactory employees. Insiders
commonly
call this process passing the trash.
Trash
passers can be sued with success. The torts of negligent hiring and
negligent failure to warn (also
called
negligent referral) give relief to those individuals suing an organization
when they feel an employee
has
harmed them. If employers don’t do a better job of hiring and referring,
it will cost their organizations
uninsured,
bottom-line money — because they will get caught.
If
all this is true, why don’t all hiring entities conduct background
checks, and why do some employers
think
passing the trash is acceptable?
You
can see the standard reasons for inaction by rounding up the usual
culprits: no perceived problem, lack
of
time, lack of money, ignorance of the law, and - the most insidious of all
- plain old bad advice.
Hiring
has moved from the one-dimensional “will this be good for the
organization and good for the
applicant?”
And now, we have a recently discovered, further responsibility to a huge
and very powerful
third
dimension: the community at large. This is probably due to an expanded
awareness of public risk,
violent
workers, Megan’s law (requiring the identification of sexual offenders),
and - coming on strong -
court
rulings against employers for lack of hiring diligence.
FCRA
IMMUNITY
According
to Fair Credit Reporting Act, Section 610(e), “No consumer may bring
any
action or proceeding in the nature of defamation, invasion of privacy or
negligence
with respect to the reporting of information or any person who
furnishes
the information to a consumer reporting agency… except as to false
information
furnished with malice or willful intent to injure such consumers.”
NOTE:
The FCRA defines a “consumer reporting agency” as a
background-checking
company
and a “consumer” as the subject of the report
A VIABLE THREAT
Out
of the thousands of applicants checked, we found that:
•
7 percent had a criminal record
•
30 percent of resumes and work references conflict with past employer
statements
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Here’s
another short list of actual behavior at public entities taken from the
local news last year.
Can
you imagine dealing with these employees?
•
A recreation center volunteer who molested several boys on the community
basketball team
•
A county truck driver, who after causing a fatal accident with a dump
truck, was found to
have
a DUI and two speeding tickets less than six months old
•
A summer municipal employee who sold several pieces of equipment he had
stolen from the
city
garage
•
A city library employee who embezzled from the overdue book account
•
A junior high school secretary who embezzled more than $6,000 from the
school band’s
travel
fund
•
A county social worker who drove children under county’s care in a
vehicle without valid
driver’s
license and with an invalid state safety inspection sticker
•
A long-time county employee who was allowed to resign with maximum
severance after being
accused
of sexual harassment
While
you’re imagining your thoughts, here are some in-basket thoughts to lose
sleep over:
1.
Your boss will want an explanation.
2.
Most of these individuals had a history of this type of behavior before
your organization
hired
them.
3.
All of them are eventually going on to new jobs and you’ll be asked for
referrals.
4.
You’ll need to prevent similar incidents when hiring their replacements.
5.
You’ll have to explain to the public (not to mention the mayor, county
commissioners, the
press,
the court, neighbors and family members) how these folks got hired in the
first place.
Sorting Truth from Trash
The most stable and clear legal basis for
rejecting an applicant is to demonstrate
his or her dishonesty. A lie in the
applicant’s own hand on your
form is incontrovertible.
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So,
what do you do? A “bulletproof” hiring process can play a significant
role in preventing harmful
incidents,
helping manage referrals, and providing standardized guidance for all
levels of supervision
in
your organization.
First,
you may need a new attorney. (As if you have a choice in the matter! After
all, if dangerous
incidents
happened in your organization, it could be said that a “keeper”
attorney should have foreseen
the
problems and suggested some preventative measures.) You need one who’s
well - versed in current employment tort actions, recent state legislation
regarding job referrals and employment laws in general.
If
you can’t change attorneys, you at least need to know where you stand
with the one you have .
Fair
warning; if you’ve heard the following statements before, stand by for
major problems implementing an effective background checking system:
•
The less written down, the better.
•
It’s against privacy laws to conduct background checks.
•
It’s illegal to ask date of birth in the employment process.
•
We could get sued if we give anything for a referral other than dates of
employment.
•
If you don’t know it, the court can’t use it against you, so don’t
ask.
•
These things take care of themselves.
•
The Fair Credit Reporting Act has nothing to do with employment.
All
these statements are false. If they sound all too familiar, you may want
to do some background
checking
on a new attorney.
Sorting Truth from Trash
The
ADA made almost all existing
application forms out of date, if not
illegal. Today, most forms remain
traditional-bound and sterilized to
the point of being useless.
What
follows is a list of procedures you should have in place before conducting
background checks or
giving
referrals. You’re obligated to follow the law and balance the
applicant’s rights and the public’s
safety
with your organization’s need for competent, honest and safe employees.
Such a system can be
developed
(for most organizations) in a few days. The advisory comments are meant to
stimulate
thought
and help uncover the unique aspects of your situation. They’re by no
means complete without
input
from staff and management and a competent legal review.
1. Policies and Procedures
A
complete set of guidelines for managers responsible for hiring and
referring is the foundation for
standardized,
fair and consistent treatment of job applicants. The outcome of every
element of
background
checking must have objective, defined limits. If you’re hiring equipment
operators, and
you
obtain their driving histories, what do you do with the information? Is
the south country garage
superintendent
going to hire a driver with an 18-month-old DUI, while the north county
garage super
refuses
to hire one with a three-year-old DUI and two speeding tickets? The
following subjects should
be
considered essential for the hiring section of the policies and procedure
manual.
Background
Checking Procedures —Who gets checked? Full-time, part-time, seasonal and
volunteer
workers
all carry risk into your organization. Explain job specific checking:
•
Those handling cash will have their credit checked.
•
Those around children, the elderly and the disabled will have their
criminal records checked.
•
Those with access to vehicles will have their driving records checked.
•
All candidates will have their last three employers contacted.
Don’t
issue a start date until checks are complete. Review the whole process,
including applicant rights
and
recourse as defined by the FCRA and the ADA.
Driving
Policy— When every employee has access to “pool” vehicles, it may be
best to write a very
inclusive
policy that says, “all employees are considered drivers, either
essential or nonessential.” Then,
proceed
to define employee categories for each group, qualifications, reporting
violations, revoking
driving
privileges (for nonessential drivers), etc. The drivers need to know that,
in accordance with
this
policy, you intend to check their driving records every six months.
Criminal
Record Policy— Write what constitutes an unacceptable criminal record for
the job, how
far
back in time you will check and where you will look. What type of record
will be absolutely
unacceptable
for any job in your organization? Can you manage an employee with a
history of theft?
A
history of assault? There are many individuals looking for jobs with a
bond posted and disposition
pending
for some scary crimes. How will you handle such an applicant? Are you
going to check the
criminal
records of volunteers?
Termination
Referral Policy — This relatively new type of policy is part of your commitment
to stop
passing
the trash. The purpose is to inform all new employees that, once they
leave the organization,
a
referral will be given to them and their prospective employers. As a
condition of employment, all
employees
must agree to cooperate in the completion of a reference information form
when they leave
the
organization’s employment. The form will also contain a statement
holding the organization
harmless
and permitting its release to any prospective employer requesting such
information.
Application,
Release and Honesty Policy — As
a condition of employment or the performance of
volunteer
work, an application form and background information release form must be
completed in
full.
Don’t give a start date until all references and background information
have been reviewed. As stated on the application form, any dishonest
entries or information withheld will be grounds for
applicant
rejection. If such dishonesty is discovered after employment, the employee
will be discharged.
Rejection
Policy — This is a tender area few hiring managers understand. For example,
the FCRA is
very
specific about informing the candidate when the decision not to hire was
made because of the
discovery
of adverse information. Will there be a standard letter of rejection? Will
it be managed by
the
personnel department?
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2. Job Description
This
represents the most basic level of understanding of the agreement between
successful applicant
and
employer. Recent federal legislation implies the more thoroughly written,
the better. The ADA
sets
the scene for determining the fairness and legality of rejecting an
application based on the job
description.
Specifically, if the applicant can’t perform the essential functions of
the job with
appropriate
accommodation, you can fairly and legally reject that application.
If
the job description and essential functions are not available to the
applicant, the basis for the decision
is
lost and the arbitrary rejection becomes legally dangerous for the
employer. For a well written book
of
job descriptions, call the U.S. Government Printing Office at (202)
512-1800 and ask for the
Directory
of Occupational Titles. (If you don’t want to spend the $50, check out
any municipal library. )
You
will still need to make some minor changes to suit your needs and the
job’s essential functions.
3. Forms
The
forms listed here are the backbone for an organized and effective
information system. The need
for
these forms is supported by detailed policy.
Application
Form — It’s been years since the ADA’s effective date. That
legislation made almost all
existing
application forms out of date, if not illegal. Today, most forms remain
tradition-bound and
sterilized
to the point of being useless. Does your form waste valuable space asking
about military
service
(okay, if you’re hiring tank drivers) or citizenship (the three page I-9
form does an adequate
job)?
You want the form to work for you. Ask for the last seven years of states
and counties of
residence
to facilitate a criminal-record check. Ask about other names and social
security numbers
used.
Require detailed past job information (the information operator charges 65
cents each time you
have
to dig out a past employers number); and ask for criminal information,
education and credential.
The
objective is to have the candidate answer all vital questions on the form.
The most stable and clear
legal
basis for rejecting an applicant is to demonstrate his or her dishonesty.
A lie in the applicant’s
own
hand on your form is incontrovertible. Some states have quirky
requirements for application
forms.
Check with competent legal counsel.
Conditional
Job Offer Form — if you want to check worker’s compensation histories
and/or require
a
physical examination, you’ll need a conditional job offer form. This
allows you to follow the ADA
rules,
learn the applicant’s workers’ compensation history, and place an
applicant who’s physically
capable
with or without accommodation in the job.
Background-information
Release Form — This form must have the applicant’s signature giving
permission
to obtain information and hold both you and the information provider
harmless. This
form
should be designed to be faxed to past employers and record holders. In
addition to a signature,
it
must contain date signed, date of birth, Social Security Number, present
residence, race and sex. A
statement
giving reasons for having this information and exactly what the form is
for is important to
the
applicant. This isn’t a personnel form that stays in the file with the
application. Its only purpose
is
to obtain job-related background information. Once the information
requested has been received,
all
but the applicant’s signature and the form’s release language can be
separated and destroyed.
Reference
Information Form — This form must be given to any employer requesting
information
about
a former employee of the organization. It will include an objective and
factual assessment of the
past
three years’ performance, a brief job description, job title, dates of
employment, last salary, reason
for
leaving, and, space for a statement if the departing employee disputes
facts or the employer’s
opinion.
It will be signed by the employee and witnessed by a member of the human
resources
department.
When hired, the employee agreed to cooperate in completing this form.
4. Interviewer Training
The
interview represents a truly intimate situation: two people alone in a
private setting, exchanging
detailed
and often personal thoughts. For many interviewers, it’s a unique
opportunity to display
power
and control. The questions become less and less job-related replaced by
more and more
innuendo
for the purpose of demonstrating the interviewer’s authority. Bad
questions are red flags. It’s
not
unusual for the applicant to be more sophisticated in the areas of illegal
questions than the
interviewer.
If so, you’ll be lucky to avoid a lawsuit generated by some dumb
questions. If possible,
four
hours of training every six months can do wonders for the quality of
interviews.
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It’s not unusual for the applicant to be more
sophisticated in the areas of illegal questions than
the interviewer. If so, you’ll be lucky to avoid a
lawsuit generated by some dumb questions.
A
few years back, a superintendent of schools had to face three sets of
parents of third-grade boys who
had
been molested by a recently hired music teacher. When asked if he’d run
a background check on
the
teacher, the super said “Sort of. At that time, general belief was
giving referrals will get you sued,
so
we shouldn’t expect one. We asked anyway and got a neutral referral. We
were happy to fill the
job.”
Unknown to the superintendent, the music teacher faced similar unproved
allegations at his
previous
place of employment. His former employer gave a neutral referral in
exchange for a
resignation
and a promise to leave the district. The trash got passed.
This
tradition continues to be acceptable in public school administration. The
superintendent of
schools
said whenever he thinks of those frightened little boys and their angry
and frustrated parents,
it
still costs him sleep. Whenever he thinks of passing the trash, he gets
very upset. Does he have a
good
background-checking system in place now? Yes, and he also has one of the
best referral systems.
“I
expect to get straight answers and I’m also pre p a red to give them. It
wasn’t that hard to get
bulletproof,”
he says.
He’s
got a referral system similar to the one described in this article. It’s
supported by state law and
immune
from civil suits - and he’s got a staff that knows how to use it.
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5. A Process for Checking Backgrounds
This
is more difficult and time-consuming than it sounds. Who manages the
process, calls the past
employers
and pays the re c o rd fees? Do you use the sheriff’s office for
criminal checks? If so, where
do
they check and how far back do they go? What if you can’t find a past
employer? Us u a l l y, hiring a
b
a c k g round checking company to do the work is far more reliable and
cost-effective. Not only can they
efficiently
and accurately obtain information, but you also get a strong level of
immunity from civil
action
by applicants and former employees. The FCRA and several state laws say
that when a third part y
(a
consumer-reporting agency) follows certain rules in obtaining information,
both the recipient and source (also following certain rules) are protected
from civil action by the subject of the information.
Cleaning Up the Process
Organizations
have an obligation to conduct hiring and referral processes in a morally
responsible and
legal
way. When they don’t, they lose money and even lives. Allstate Insurance
Co. wrote a letter of
recommendation
for an employee, Paul Calden that said he was “let go” as a part of
corporate
restructuring.
He was actually fired for bringing a gun to work. Fireman’s Fund
Insurance Co. hires
Calden
based, in part, on the letter from Allstate.
In
1993, Calden shot five co-workers in the Fireman’s Fund cafeteria,
killing three before taking his
own
life. The Wall Street Journal (July 8, 1996) suggests that lawsuits
filed against Allstate were
responsible
for legislation protecting employers against litigation from employees in
the reference giving process. Now 25 states have some type of law helping
former employers be more forthright in
their
evaluations and communications with prospective employers. The often
overlooked (25-year old)
FCRA
contains essentially the same language as many of the new state laws.
The
torts of negligent hiring and negligent referral punish lax employers. The
public will be better
served
when the dangerous practice of “passing the trash” is replaced by a
useful hiring and referral
service.
That process, briefly described above, is an inter-related chain of
background checking,
policies
and procedures, forms, job descriptions and training. Only when we follow
appropriate
background-checking
procedures will we effectively avoid the tragic consequences of passing
the trash.
Dozens
of attorneys (and many more personnel professionals) will tell you it’s
illegal to ask date of birth or
high
school/college graduation year in the hiring process. Yet, when challenged,
they’re unable to produce a
copy
of a law to that effect. The Age Discrimination in Employment Act states
it’s illegal to discriminate
against
someone in the hiring process who is at least 40 years old because of his
or her age.
There’s
a huge difference between “illegal to ask about your age” and the
assumed “illegal discrimination.”
In
the risk management business, it’s difficult enough to assess risk
without someone interpreting
(incorrectly)
for you. In considering the balance of risk, many information sources will
not release records
unless
date of birth is provided along with name and, often, Social Security
Number. This is true for driving
records
in about half the states and in many venues (along with sex and race),
it’s required when requesting criminal records.
Date
of birth can be used legally and fairly to obtain records of job-related
information as defined
by
a written job description and supported by published policies.
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