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Make It Your Business

How closely do you look into the backgrounds of your potential hires?

It shouldn’t be hard to imagine that you own a sign/digital graphics business that offers next-day delivery on local orders because you have your own truck and driver. Let’s say one day you learn that your driver has suddenly quit without giving you any notice. You can limp through today’s deliveries with help of other employees, but you need to hire a new driver post haste. Desperate for a warm body with a valid driver’s license, a right-to-work social-security card and the ability to read a map, you hire a fellow named Mr. Rodney Crew. You conduct no background check of Crew, and make no attempt to verify the information on his employment application.

While driving your company’s delivery truck in a nearby town, Crew loses control of the vehicle and drives into the front yard of Pamela and Michael McMahon. After unsuccessful attempts to free the truck from fencing and shrubbery, Crew asks Mr. McMahon to call you. You assure McMahon that your company will pay for any property damage and you tell him you’ll arrange for a tow truck to extricate the vehicle. When McMahon goes across the street to talk to the owner of a florist shop, Rodney Crew pulls out a pistol and shoots him in the back. He then flees the scene on foot and flags down Michael Brezenski, innocently driving by in his pickup truck. Crew gets into Brezenski’s truck and, upon hearing about a shooting incident on the vehicle’s police scanner, shoots Brezenski in the chest.

Sound far fetched? Nope. It really happened. In the 1993 civil suit, Brezenski v. World Truck Transfer Company, the latter was found “negligent for the failure to exercise reasonable care in determining an employee’s propensity for violence in an employment situation where the violence would harm a third person.” Need more reasons to conduct background checks on your job candidates and employees? Let’s look at some more, and see what makes for a good background check.

WHO SHOULD YOU CHECK?
When making a hiring decision on a worthy candidate, you might need a bit more information than a candidate provides on his or her application. A 2008 Accu-Screen report claims that up to 43 percent of résumés and job applications contain false information. You can safely assume a higher percentage of job seekers withhold vital information, such as the applicant’s activities while “self-employed” or while the candidate is trying to cover-up periods of unemployment, incarceration or other embarrassing circumstances. And the frequency of such misinformation may have already risen as people have become more desperate for work during these trying economic times and runaway unemployment.

It may not be cost-effective or feasible to run a background check on every job candidate, but certainly you should conduct one on finalists for any position in your organization. Different levels of background checks are acceptable basic checks for lower- or entry-level positions, and more extensive checks for supervisory or sensitive/strategic positions (eg: IT or accounting personnel). The rule of thumb is “the bigger the risk, the better the check.”

You may decide to conduct a background check on employees you promote, particularly if you didn’t conduct a good one when they were first hired or if you haven’t done one for a long time. Even if the worker is not up for promotion, conducting an updated background check on key personnel every three to five years may be a wise strategy. If an employee is routinely driving company vehicles, a driving record check would be very appropriate. Also, as a worker is given more access to the company’s electronic or filed records, running a credit report or criminal records check could reveal pertinent information.

WHAT SHOULD YOU CHECK?
As a business owner, you are required to respect all persons’ privacy rights when conducting background checks. You don’t have an unfettered right to dig into others’ personal affairs, but you do have an unwritten obligation to protect your business. Still, workers may sue you and the company if you pry too deeply. Here are a few tips to help you avoid crossing the line:

  • Make sure your inquiries are job-related. Stick to uncovering the information that is relevant to the particular job in question for the applicant or current employee.
  • Ask for consent. You are on the safest legal ground if you ask the person, in writing, to consent to a background check. Explain, in clear and simple terms, what you plan to check and how you will gather the information. This will give a job finalist a chance to take himself out of the running if there are things he was trying to hide that are pertinent to the position. Getting his consent also prevents him from claiming you unfairly invaded his privacy. Under the Fair Credit Reporting Act (FCRA), for example, employers must get written consent before seeking any person’s credit report.
  • Be reasonable. Hiring employers can get into legal trouble if they engage in background-check overkill. If you find yourself questioning neighbors, ordering credit checks and performing exhaustive searches of public records every time you hire a clerk or counterperson, you need to scale it back.

A basic background check could consist of a review of a person’s criminal or court record, verification of past employment dates, salary and job title, and personal and professional references. If it is applicable for the position, you may also verify education—checking to be sure the institution exists and the degrees or diplomas were actually earned and awarded. Be aware that, under federal law and the laws of some states, educational records are confidential and many schools will not release records without written consent and/or will only release records directly to the student.

Checking the validity of licenses and/or certifications may be appropriate for certain jobs. Are they current? Have they lapsed or been revoked? Motor vehicle records should only be obtained if driving conducting company business is part of the job. This pertains, too, to professional licenses. If the applicant claims to have run a business and will have a hand in running yours, you are within your rights to check the Better Business Bureau for any negative reports, or the municipality that issued a business license for validation.

Many employers routinely include a request for consent of checking a person’s credit report. If you decided not to hire or promote someone based on information on his credit report, you must provide a copy of the report and let that person know of his right to challenge the report under the FCRA. Because of the potential for identity theft or fraud, some states have more stringent rules about obtaining and using credit reports. If the credit report reveals a claim of bankruptcy, know that federal law prohibits employers from discriminating against applicants because they have filed for it. This means you cannot refuse to hire someone solely on the grounds that he or she has declared bankruptcy in the past.

Beyond the basic background check, you may decide to look at a person’s military record after gaining consent. In general, military records will disclose only name, rank, salary, duty assignments, awards and medals, and current duty status.

HOW SHOULD YOU CHECK?
There are many commercial firms that will, for a fee, conduct in-depth background checks—as deep as you desire. These companies include Kroll (www.kroll.com), CrimCheck.com, EmployeeScreen.com and EasyBackgrounds.com, to name a few. You could decide to conduct your own background check since you may not have the need to do it very often, or don’t want to spend the money. It’s not that tough to do, provided you have the time.

Contacting personal references is probably something a commercial background check firm will not do. Be sure that, on your company’s job application, you have some version of the following statement and the job seeker acknowledges it: “I understand references may be contacted as part of a background check, and that appropriate work-related references are not limited only to those on my application.” This will allow you to ask people whose names were provided on the application—presumably you will not be given the name of unfriendly reference—for the names of other people who know the job applicant and may have relevant information. Please note: If you are contacted as a reference for a former employee, you should restrict your response to the person’s job title, salary and dates of employment. You should not disclose much beyond that, especially the reason for separation.

It is interesting to note that, based on a recent magazine poll, 22 percent of hiring companies researched Facebook and/or MySpace to see if applicants had personal pages there. Further stated by the poll, employers indicated 38 percent of applicants were disqualified based on information found on those social-networking sites.

Criminal and court records are in the public domain and easily accessible. You may want to check the Federal Bureau of Prisons (www.bop.gov) or the links to state prisoner databases (www.brbpub.com/freeresources/pubrecsites.aspx). There is a link to the national and state sexual offender registries at www.nsopr.gov. At the same time, you should double check what your company’s job application asks the candidate for. Do you ask the applicant “Have you ever been convicted of a felony?” or “Have you ever been arrested or convicted for a crime, including misdemeanors?” Understand that job seekers will only give you the minimal amount of information that is asked on the application in this regard. And remember, traffic violations are crimes, so be careful for what you ask. The Equal Employment Opportunity Commission (EEOC) has stated that arrest-record inquiries have been known to have adverse impact on minorities and could be used against you if a job applicant believes an unfair background check revealed an arrest record that has been legally expunged or the charges dismissed.

WHAT TO DO WITH THE RESULTS?
Surprisingly, this is up to you. The reason you are engaging in background checks is to have all the information you need to make the right hiring or promotion decision. How you interpret and act upon the results of a background check gives you great discretionary latitude. It is far more important that you ask the right questions during the hiring process and on your company’s job application.

For example, don’t ask for someone’s social security number on the application. That information can be obtained after you tender a job offer and before the employee begins work. By the way, you can verify a person’s right to work online at www.dhs.gov/e-verify.

Don’t have an applicant disclose medical information, dates of education (that might reveal a person’s age), and past drug/alcohol use on the job application form. This information can be obtained during a post-offer background check. Asking for this information up front is opening your business up to potential discrimination law suits.

Finally, the consent statement you will ask job seekers to sign on your application form may look like this: “For the purpose of hiring and at any time during subsequent employment, I hereby authorize previous employers, educational institutions, licensing bodies, agencies, or persons to provide to (name of your company) any information requested regarding employment, skills, abilities, character, experience, qualifications and/or suitability for employment with (name of your company). I understand the background check may include criminal records. I hereby release from liability all parties involved in providing, obtaining, or acting upon such information.”

Good luck!