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An Introduction to Background Screening: The Essentials

I remember a time, many years ago, when employers would rely solely on current workers, friends, and a variety of other associates to make recommendations regarding the hiring of new people. I was one of those employers. It seemed much safer and wiser to trust the advice of a person you knew than it was to even accept applications from unknown individuals.

I also remember when business was conducted over a handshake and a person’s word. Although such a practice surely does continue for some, people have recognized that the world has changed. I do believe a man’s word is still his bond. I also know from 30 plus years in HR that building a solid workforce, especially a larger one, requires a more open approach to hiring since jobseekers from other states and countries are asking you for a chance to prove themselves.

But ‘open’ does not mean hasty and risky. Trust must be built. It takes more than a person’s word today to conduct business. Today’s challenging and complicated employment process requires knowledge of federal and local laws, patience, common sense, and consistency. For employers operating multiple sites (in a single state or many), it is imperative that everyone involved with recruiting and hiring is “on the same page.” Very simply, this means that the actions of HR at a company’s location in Texas should mirror those of HR at the Florida location.

Laws within certain states impact some employment procedures, but for the most part, solid best practices, when universally applied, are smart and can stand up to legal and ethical scrutiny.

Unless an employer’s workforce is comprised solely of obedient mechanical robots who never miss a day, do not sell drugs, steal, or initiate fights, then human beings must be relied on to help the business exist and prosper. And with real people, problems are an everyday concern and occurrence. Issues such as workplace violence, theft, drug sales, harassment, poor performance, and others threaten every business, regardless of size.

So how can you, the employer, put the odds in your favor that you will make the best choices possible when it comes to bringing new people onto the workforce?

First, along with your legal team, you must ensure that all of your employment-related documents and procedures are current and legally compliant. You should scrutinize your job application and interview processes, feeling confident that no unlawful questions are being asked on paper, online, or during an interview. Some of the nation’s largest and most respected companies have been successfully sued in large class-action lawsuits because a question on a job application was worded unlawfully, or a sentence on a background check authorization form (signed by the applicant) violates federal law.

Next, especially if you operate multiple sites, you should train the people involved with employment to all be “on the same page.” This means that unless a state or county requires differently, your job applications and other documents will be similar regardless of locations and that those responsible will absolutely understand how to conduct a legal interview.

For example, during the interview process, it is a violation of federal law to ask a person about family life, hobbies, etc. An informed job applicant (known in the legal employment background screening world as a ‘consumer’) who is asked such questions could easily find an aggressive plaintiff’s attorney or contact the Equal Employment Opportunity Commission (EEOC) to initiate legal action. The bottom line is that consistency of a legal employment process is your best defense against such potentially damaging lawsuits.

Finally, you absolutely MUST have a well-defined background screening (also known as ‘background checks’) program in place. How could you hire a driver without knowing that his/her driving record meets the standards of your insurance carrier? Why would you employ a warehouse manager or an AR/AP person without checking criminal history to learn about any issues that could impact your decision? What would be the sense of putting an accountant on the payroll without knowing if he/she were officially licensed/acknowledged by a state or national agency, or has accurately portrayed educational credentials?

  • Criminal Record Checks – local, county, state, federal, international
  • Driving Record Reports (Motor Vehicle Records)
  • Verification of Previous Employment
  • Federally Required Checks for D.O.T. Commercial Drivers
  • Confirmation of Education
  • Verification of Professional Licenses and Credentials
  • Contact of Personal and Professional References
  • Employment Credit Reports (when permitted by law)
  • Worker’s Compensation History (when permitted by law)

Legal compliance is absolutely vital in the background check process. Many federal, state, and local laws impact how background checks are procured and used. The federal Fair Credit Reporting Act (FCRA) is the primary legislation that oversees the background screening process.

Some FCRA highlights include:

  • An employer must have a “permissible purpose” to procure a background check.
  • A clear and distinct document called a Disclosure must be presented to the applicant. This document plainly states that a background check may be ordered.
  • The applicant must Authorize (with a wet signature on a document or an electronic signature online) the background check.
  • Both the Disclosure and Authorization documents should be “stand-alone” documents and cannot include any language that does not pertain to the actual disclosure and authorization purpose. For instance, the documents cannot include hold-harmless and/or indemnification statements.
  • The employer must use the information in the background check report according to federal, state, and local laws.
  • If the employer is going to deny employment based in whole or in part on information in the report, the Adverse Action Procedure, as fully described in the FCRA, must be followed. This procedure was created to give applicants an opportunity to review the report for accuracy before the actual “no hire” decision is made.
  • Failure to follow any of the above steps can results in costly and potentially devastating legal action.

Once procedures and best practices are established, the actual process of ordering background screening and reviewing results can begin. It would be unwise to begin a background screening program without having firm, written policies in place that fully describe the process: from how orders are placed (and which levels of screening are ordered) to the way results are reviewed and applied.

So how do you decide which levels of background screening you need to order? This is always an important decision. Identical businesses with the same categories of employees may decide on totally different ways to screen applicants. Their decisions, as mentioned above, may be based on the levels of due diligence they want to accomplish, their budget, and what their legal counsel advises.

You could complete background checks on your own. For instance, if you needed a driving record you would drive down to the local state agency, wait in line for an hour, pay for the record and review it. Or you could ask LaborChex, Inc. to do this for you, get the record in about 60 seconds, and save the aggravation.

Let’s say you are a company in Tennessee, but your most desired candidate has lived and worked in Arizona and Florida over the last ten years. You want to check criminal records. By the time
you figure out what type of record to order, how to obtain it, and how to pay for it, LaborChex, Inc. would have the results for you.

Trusting a well-established, privately-owned company like LaborChex, Inc. (in operation since 1991) to provide legally compliant background checks at a competitive price is wise. We will save you time and money. Think about all the benefits of reduced recruiting, turnover, and insurance costs, fewer worker’s comp claims, and a safer workforce for everyone.

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