Background Screening Expert and Thought Leadership Insights
Background Screening Insights, a Blog by Barry Nixon
W. Barry Nixon, SHRM- SCP
Co-Author, Background Screening Investigations: Managing Hiring Risk from a HR and Security Perspective; Creator of the leading background screening information portal – PreemploymentDirectory.com; Publisher, award winning e-newsletter, The Background Buzz, and e-magazine, The Global Background Screener, Annual Background Screening Industry Resource Guide; Author, Comprehensive Guide for Selecting a Background Screening Firm.
It soon could be mandatory for those employed as a children’s character to complete a background check in the state of New York. Employers would be required to run a person’s name through child abuse and sex offender registries and knowingly hiring an offender would be a Class A misdemeanor. If signed into law, the bill would take effect the following November after the bill is signed.
No two companies are alike and similarly, no two company’s drug testing programs are likely to be the same
A drug test involves various stages leading up to final result and there are professional providers for each phase of the drug testing process. These providers include:
- Device manufacturers
- Specimen collectors (for urine, oral fluid, and hair),
- Laboratories (for analysis of the collected specimen),
- Medical Review Officers (MROs) (licensed medical professionals who verify test results),
- Substance Abuse Professionals (SAPs) who evaluate employees who have violated a DOT drug and alcohol program regulation and make recommendations concerning education, treatment, follow-up testing, and aftercare, and
- Third-Party Administrators (TPAs) who manage the entire testing process, representing their clients with the other professionals involved in the testing process. In addition to outsourcing the above services, many TPAs offer their own internal collection services and sometimes even MRO services.
In order to select a drug testing provider who can meet your company’s needs, it is critical to first outline why your company drug tests and how you will define a successful program. Although this may seem simple, to be the most effective it should involve all stakeholders in the evaluation and understanding of your program’s desired outcomes. Typical stakeholders in an organization can include the business owner or a designated representative, an HR manager, a safety coordinator, someone from the medical department if applicable, and anyone else with responsibility for employee performance, safety, and health.
With more employers drug testing their employees as an unintended consequence of the legalization of recreational marijuana, some are wondering whether saliva testing offers additional advantages. This form of testing allows those who have a hard time providing a urine sample an alternative solution and is relatively cheaper than urine collection. Saliva also can be collected in various settings, rather than the restrictions of urine collection, and reduces the risk of samples being substituted or adulterated.
For all the Private Investigator firms that conduct background checks its time to go back to school.
How is it possible, at this point in time, that service providers and their clients are still getting it wrong when it comes to creating a legally compliant ‘disclosure and authorization form for job applicants to provide their consent to a background check being conducted? The lawsuits with ‘disclosure and acknowledgement’ forms central to the case are continuing to rise despite the high cost of not fully complying with the Fair Credit Reporting Act (FCRA). Just ask companies, like Domino’s Pizza, Wholesale Foods, Publix Groceries, Disneyland to name a few.
Its likely that many of you are thinking, no problem, I have this issue covered and know all I need to know about ‘disclosure and authorization’ forms. Okay, Ms/Mr Smarty Pants, here’ a pop quiz for you:
- Is an employer compliant with the FCRA’s ‘standalone’ document requirement for the ‘disclosure and authorization’ form when they provide job applicants with a disclosure containing state disclosure requirements; and
- Is a ‘disclosure and authorization’ form that states,”The scope of this notice and authorization is all-encompassing and allows the employer to obtain from any outside organization all manner of consumer reports and investigative consumer reports now and, if you are hired, throughout the course of your employment to the extent permitted by law” legally compliant with the FCRA?
The answer to both questions is a resounding no.
Legal cannabis and hemp or CBD has become the latest rave racing rapidly across the U.S.and finding its way into many consumer products. The availability of products containing CBD in varying proportions is increasing exponentially.As CBD products surge in the marketplace they also present employers who conduct drug testing with a new issue, Can Common Drug Test Used by Employers Tell the Difference between CBD or THC?
CBD oil is short for cannabidiol and is a compound found in cannabis. CBD, a non-intoxicating compound that, like Tetrahydrocannabinol, or THC, is found in varying amounts in the plant known as cannabis.
“THC, is the chemical compound responsible for marijuana’s euphoria and is usually screened for in a typical urine drug test. When drug testing is mandated, employers follow guidelines, such as the Substance Abuse and Mental Health Services Administration (SAMHSA), which has a set cutoff level for a positive test at > 50 ng/mL. When a test is positive, it then gets screened again with a confirmatory GC/MS or LC/MS test, which have cutoff levels of 15 ng/mL and is specific only to the THC metabolite.”1
Background checks are complicated, highly regulated, and come with big consequences. Even minor mistakes cause big problems. Missed talent opportunities. Unhappy candidates. Increased legal risk. Nothing slows down — or even stops — the recruiting process like a bad background check.
Download the Beginner’s Guide to Background Checks to learn:
- What searches are included in a background check
- How to stay compliant with the FCRA and EEOC
- What questions to consider as you implement background checks
Evolving since the 1990s, which saw a rise in high-profile cases of workplace violence, as well as an increase in negligent hiring claims, the background screening industry has welcomed technological assistance as new threats have become presented. What once consisted of a one-time background screening process now includes continuous monitoring that reduces risk and makes the workplace safer. With 96 percent of U.S. employers conducting background screens, according to the National Association of Professional Background Screeners (NAPBS), many began to see the value in conducting periodic rescreening, especially high-risk companies. Now, however, background screening companies are introducing “continuous monitoring” products that alerts employers of real-time criminal activity throughout the duration of employment.
All too often, HR Managers and end-users skimp on the federal criminal record churches, relying solely on county courthouse searches. Federal searches include violations of federal law, such as those enforced by the DHS, FBI, DEA, ATF and other federal government agencies, and don’t appear in state or county criminal reports. Crimes that may surface during a federal check include airplane hijacking, arson, counterfeiting, first-degree murder, forgery and drug trafficking. National criminal databases, state and country searches simply are not sufficient by themselves to identify complete criminal records and the safety of a business’s employees, assets and reputation are on the line without a federal criminal record check in place.
Class action lawsuits involving the Fair Credit Reporting Act (FCRA) are nothing new. But the 265 lawsuits that were filed in February 2017 saw a 59.2 percent increase, jumping to 422. According to Wesley Bulgarella and Jonathan Hoffman, attorneys with Balch & Bingham LLP, FCRA filings have even started to outnumber Telephone Consumer Protection Act (TCPA) filings in recent months, representing a drastic shift in consumer protection litigation. Their report, FCRA Climbing the Ladder to Top Consumer Litigation Statute, which shared insights from WebRecon, states that many consumer plaintiffs are repeat players about 33% alleging FCRA, FCPA or Fair Debt Collection Practices Act (FDCPA) violations in February 2018 had filed at least one similar suit before. A single class action lawsuit broke the records at $60 million against TransUnion, but even individual suits are reaching six-figure verdicts. PETCO job applicants reached a $1.2 million background check class action over unlawful policies and in a similar case, the Ninth Circuit of Appeal held that the inclusion of a liability waiver in the same document at the FCRA disclosure violated the stand alone requirement. Other cases include: Vitas Healthcare Corp. employees alleging the authorization and release form is unlawful; PepsiCo subsidiary, Bottling Group LLC, paying $1.2 million to a plaintiff who said he was not properly notified that a background check would be performed; and Lewis v. Southwest Airlines, in which the plaintiff asserted classwide and willful violations of the FCRAs disclosure requirement and corresponding violence.
While its true that Fair Credit Reporting Act (FCRA) class action lawsuits have been steadily on the rise, it is perhaps the immigration status issues that have overshadowed the news. President Trump signed Executive Order 13788 Buy American and Hire American calling for the rigorous enforcement and administration of existing laws to protect the interests of United States workers. The National Conference of State Legislatures said that lawmakers in 47 states have enacted 133 laws and 195 resolutions relating to immigration in the first half of 2017. And in the second part of the year, Immigration and Customs Enforcement (ICE) announced that it would be significantly increasing worksite related investigations. Dont expect it to blow over, either in January, U.S. immigration agents came down on dozens of 7-Eleven stores to open employment audits and interview workers in the largest operation against an employer under Trumps presidency. It is the I-9 form that is under attack, with ICE assessing a monetary penalty for each I-9 that has one or more substantive or uncorrected technical violations using a sliding scale. Employers with 50% or more errors are fined at the highest amount — $935 per I-9. Employers can prepare by for ICE worksite audits by taking several steps: 1. Compliance awareness, 2. Self-audits; 3. Creating an I-9 policy document; and 4. Using an electronic I-9 system to ensure compliance moving forward.
Does an Employer Receiving an Updated Background Screening Report Have an Obligation to Send a Second Pre-Adverse Action Notice to an Applicant?
Under the Fair Credit Reporting Act (FCRA), an applicant has a right to 1. Be told if information in their file has been used against them to deny employment or to take another adverse action against them, 2. Know what is in their file, 3. Dispute incomplete or inaccurate information, and 4. Seek damages from violators. Employers often wonder if they have an obligation to send a second pre-adverse action notice to an applicant after updating the background screening report. Pam Devata and Jennifer Mora of Seyfarth Shaw LLP recently shared information about Wright v. Lincoln Prop Co., in which a judge in the Eastern District of Pennsylvania considered how an employer can comply with the adverse action process if it relies on an initial background report before revoking a job offer, but then received a subsequent, corrected report. Both parties in the case moved for summary judgement, but the court denied the employers motion for summary judgement because a copy of the final report was not sent to the plaintiff. According to Devata and Mora, however, this is a not a blanket requirement. It is worrisome, in fact, that the FCRA language, shall provide a copy of the report to the consumer to whom the report relates could be defined differently from judge to judge. Another judge could determine that must provide can mean actual receipt or proof of delivery. It is in the best interest of employers to strive for achieving best practices that exceed the legal minimum requirement.
Authored By W.Barry Nixon, SHRM- CMP
The benefits of performing in-depth background checks for both employment and legal purposes are no secret. From criminal records searches, educational credential verification, employment history, professional licenses, credit reports and civil litigation searches, these standard sweeps can raise a red flag for potential problems with candidates for hire. But not all aspects of the background check are created equal. Many, detailed below, are not as easy to discover and could potentially cause the most harm to unassuming employers.
1. Secret companies and conflicts of interest
Although it is easier now than ever to kick start a side business in an attempt to earn some extra money, be weary of conflicts of interest or fraud. Companies should consider trying out an investigative database performed by legal research providers.
2. Shell companies used to backstop employment history
When a resume lists self-employment – especially for a short period of time – it is important to verify the information using state business records and collect copies of 1099s. History has revealed individuals who have been let go by an employer or even served time in jail listing business ownership until employment or release, respectively.
3. Unverified military career with extraordinary claims
While it is important to respect those who serve the country, it could save your business trouble later to verify military experience that has been listed on a resume. With a seven-year scope automatically subject to verification, it never hurts to go back further when military involvement has been strikingly described.
4. Recently issued social security number
Recently issued social security numbers should raise a red flag for potential employers, especially for potential senior employees. This simple way to cover up a former life can easily be investigated with the free SSN validator offered to registered users by the Social Security Administration.
5. Inappropriate behavior on internet message boards and social media sites
The Internet is a wealth of information to further investigate a potential hire’s background information. Use of social media sites and message boards are an easy way to learn the truth about candidates. This free search should include sites like Facebook and LinkedIn, but also some deeper dives into a person’s background like searching for an email address that may lead to personal interests, reverse phone number look up and other places where internet footprints may be left behind.
A typical background check can reveal important information about potential hires, but it never hurts to dig a little deeper to ensure the candidate is exactly who he or she says he is.
Authored By W.Barry Nixon, SHRM- CMP
Although most employers recognize the importance of completing background screenings on new employees, many don’t realize how quickly things can change for a hire who started off with a clean record. What began as the best fit for an open position, later can become an issue of fraud, embezzlement or even workplace violence without the proper steps to ensure a safe and honest work environment.
Fortunately, there is a vast amount of screening tools that can help employers keep track of their employees throughout their employment. Information like status of professional licenses, certifications or driving infractions, criminal convictions, immigration status changes and other details can be tracked using programs like Infinity Screening. Tracking changes surrounding these important elements can help eliminate future problems like fraud, embezzlement, identity, information and property theft, workplace violence, safety violations and lawsuits. In fact, employees are responsible for about 60% of the losses faced by businesses.
Not only that, but, according to the Association of Certified Fraud Examiners, U.S. organizations also lose about 6% of their revenues to occupational fraud, estimated at about $6 billion annually.
Workplace homicides, averaged to cost about $800,000, has decreased over the years, but remains a concern for employers who face suffering and financial burden due to workplace violence. Continued screening of employees can raise red flags that may indicate a problem with the mental health of one of its employees.
Not only does Infinity Screening help manage risk, but it also helps a business meet its fiduciary responsibilities and eliminates negligent retention, or its responsibility to take action if and when an employee is suspected of wrongdoing. It is far better for an employer to be proactive in its screening than to find themselves in a reactionary position that could cost them thousands of dollars to correct.
While it is important for businesses to have a firm understanding of the legal issues associated with background screenings, as defined by the Fair Credit Report Act, Infinity Screening also is cognizant of the requirements. Several industries, including medical and healthcare facilities, now are legally required to perform ongoing screening in an effort to ensure licenses and certifications are current. And the Department of Transportation faces penalties when they fail to perform ongoing drug testing on its employees. Banks and brokerages must be aware of guidelines similar to those detailed in Section 19 of the Federal Deposit Insurance Act, which prohibits any person who has been convicted of a criminal offense involving finances from participating in the conduct of the affairs of an insured institution.
Ongoing background screening with tools like Infinity Screening can protect businesses from potential future problems with good employees turned bad. By being aware of the red flags associated with things like fraud, embezzlement, drug abuse and mental health concerns, employers can prevent issues that may cost them thousands to repair.
Authored By W.Barry Nixon, SHRM- CMP
The easiness of performing a background check is a thing of the past. Although most employers have accepted background screening as a risk mitigation tool, businesses are seriously underutilizing the process for the evolving legal landscape. With changes in laws around marijuana, the Fair Credit Reporting Agency, Ban the Box and Credit Checks, the background screening process has changed tremendously.
Changing Legal Landscape
Even though 19 states and the District of Columbia have enacted laws regarding the legalization of marijuana, employers still have rights pertaining to drug testing and employment denial based on test results. This, however, is a quickly changing hot topic.
Fair Credit Reporting Agency Lawsuits
Perhaps another touchy subject for private investigators who perform background checks is the rise in lawsuits filed by the legal community in an attempt to make money off of failure to follow FCRA prescribed procedures. Examples include the inclusion of a waiver of liability in consent and disclosure forms; time frames surrounding submission of a pre-adverse action notification form; and information included in online authorization forms.
Ban the Box
With 56 cities and counties adopting ban-the-box laws in some form or fashion, the policy now is including private employers, government jobs and contractors in several states.
Use of Credit Checks
Ten states now limit an employers’ use of credit information, while 47 bills in 26 states and the District of Columbia were introduced in the 2013 legislative session regarding its use in employment decisions. This trend is on the fast track to eliminate credit report use altogether.
Underutilization of Background Checks is Increasing Risk
Lack of Screening Contingent Personnel Continues to Create Unnecessary Risk
It is important for employers to perform the same type of screening on all employees, regardless of their status as contingent personnel. With the use of contingent employees – janitors, vendors, maintenance staff — on the rise due to the trend in flexible workforce, companies should be aware of the risk associated with access to company information.
Despite Increasing International Mobility Screening of International Candidates lags behind
It has been determined that education and employment fraud for international applicants has been as high as 25% and with about 13% of the U.S. population consisting of immigrants, it is important to properly screen those who have lived, worked or were educated outside of the country. The use of infinity screening can help lower a company’s risk by allowing them to be well-informed about their employments throughout their course of employment.
Accreditation May Lead to the Promise Land
Only 2% of all background screening firms have been accredited by the National Association for Professional Background Screeners, making this a competitive field. Dealing with a reputable firm ensures that the background screening process is well understood and complies with all screening laws as set by the FCRA, EEOC and other federal and state agencies.
With these topics and others, the background screening industry should be prepared for significant changes around the bend. It will serve employers well to become knowledgeable about the screening performed on each of their employees.
Authored By W.Barry Nixon, SHRM- CMP
In addition to conducting background checks, reference checking, or the process of contacting previous employers of a job applicant and individuals who have worked with him or her, are another way to determine if the potential hire’s capabilities, work history and personal fit will suit an open position.
But don’t confuse this process with employment verification or background checking. Also part of the hiring process, these procedures authenticate job and salary histories, and dates of employment, and ensure information supplied through resumes, applications and interviews is accurate.
All three governed by the rules of the FCRA, reference checking takes verification to the next level through interviews with individuals other than the applicant to learn about character, reputation, and mode of living.
Some employers have found that moving the reference check to the beginning of the application process helps identify applicants who are a poor fit before moving on to the next step, saving time and producing a better-quality pool of final applicants.
Although some companies fear being sued on discrimination or defamation charges, the reality is that this rarely happens and, when it does, very few are found liable. It is extremely difficult for the plaintiff to prove malice, which is rarely the case. It is, however, very important for employers to have guidelines in place to protect them from liability.
Qualified privilege, of which 38 states have passed laws, deems an employer lawfully able to make contact with references, unless 1. It is not for legitimate purposes; 2. It is communicated to a person without a need to know; 3. It is made with actual knowledge that is false or reckless; and 4. It is made for discriminatory reasons.
Many employers recognize, however, that giving out no information is the safest way to avoid legal liability. But, consider taking the following steps to encourage employers to provide valuable reference information:
* Have the applicant sign a Disclosure and Authorization form that authorizes the reference check. The potential employer should work with a labor lawyer familiar with state laws to develop the disclaimer’s language, which should be specific and clear by listing all information for which he wishes to obtain details.
* Involve the applicant in the process by having him or her contact the previous employer to let them know a release and request has been signed.
* Employers in states that have qualified privilege laws should attach a copy of the law to the signed release.
* Consider advising the previous employer of his obligations to provide information.
When performing reference checks, it is important to understand the growing threat of fake references. Companies like CareerExcuse.com and fakeresume.com offer to “fill any gap on your resume,” even going as far as creating phone numbers, websites and LinkedIn profiles. Employers can combat these unethical services by checking all references, asking to speak to others who may speak about the applicant, cross referencing information gathered with public information found on the Internet, and completing a simple Google search for the company.
Performing a thorough reference check takes extra effort on the part of the employer, but it is well worth the time to ensure no inconsistencies or misrepresentations have been missed.
Exposed: The Myth of the FBI Database being the Gold Standard of Background Checks, What Your Clients and Prospects Need to Know
Authored By W.Barry Nixon, SHRM- CMP
Relying on the FBI to run accurate background checks could cause harm to your business. Many believe that the FBI NCIC database is an all-encompassing national criminal directory, but the truth is, employers should be diligent in their understanding of the flexibility of the process, including what is accessible and customizable. It is important that the process is able to be adjusted to fit individual needs.
According to Angela Preston, Senior Vice President and Counsel, Corporate Ethics and Compliance, while an important tool, use of the FBI check includes flaws, including incomplete criminal histories, irregular update schedules, a frequent lack of a final court disposition, inclusion of arrest records that may violate the EEOC’s Guidance, and FBI reports that don’t adhere to FCRA requirements.
It has been noted that up to half of all final outcome criminal records are missing from the FBI database because of varying state requirements regarding submission of such data. And, according to the Government Accountability Office, the lack of a final court disposition can be misleading regarding an applicant’s criminal history, causing employers to turn away otherwise worthy candidates for the position. For example, nearly half of FBI rap sheets failed to include information on the outcome of a case after an arrest. And, according to Sterling Talent Solutions, there are some occasions in which fingerprints are not taken.
Perhaps the most alarming aspect of the FBI database is that the reports don’t allow applicants to challenge the results, a clear violation of the Fair Credit Reporting Act and other state laws. Upon requesting a background check of a potential hire, employers are lawfully required to obtain written consent, provide a copy of the consumer report or criminal history report, and to notify applicants who are not selected based on the report of their rights and information being reported.
With that said, there are many benefits of using a professional background screening firm to conduct necessary background screenings, but it is important to understand the requirements associated with the check. Always let the client know that the business uses a set of personal identifiers like full names, social security numbers and address history. Be sure to emphasize that the consumer report check is drawn from many sources in order to provide complete, up-to-date information, including federal, state and local courts, incarceration records, and government watch lists.
Use of the FBI database can be a great tool for performing screening, but it can provide a false sense of security simply because of its name. It is important to use a wide array of databases and sources in order to perform the accurate and current background screening necessary for a great hiring process.
Authored By W.Barry Nixon, SHRM- CMP
Motor Vehicle Records checks are a necessity for any business that has vehicles supporting business operations, from personal passenger vehicles, to fleets of delivery trucks.
MVRs have become a regular part of the background screening process due to motor vehicle accidents being recognized as the leading cause of occupational fatalities in the workplace. In fact, more than 20 million drivers are involved in accidents each year and more than 250 billion dollars are spent annually on motor vehicle accidents.
MVR checks help identify high-risk drivers before accidents occur by revealing insurance lapses, traffic violations, accidents, license revocations, DUI charges that may not appear on criminal records, and an accurate record of previous addresses.
It is important to note, however, that several key federal laws govern the use of MRVs and that companies that do not comply face the risk of lawsuits and government penalties.
The Driver’s Privacy Protection Act of 1994 is the primary law that restricts state DMVs from disclosing personally identifiable driver records without first obtaining the driver’s expressed written consent. There are some exceptions, however, including the release of information for purposes related to “safety of the operation of a motor vehicle.” Potential hires, however, should be advised that, should the company disclose or misuse the information, a civil lawsuit may be filed, suing for actual and punitive damages, attorney’s fees, costs, and equitable relief.
Thirty-nine states have enacted laws that require a company to notify employees when the security of personal information is breached, while 12 states have laws that govern the manner in which companies dispose of any personally identifiable information, such as shredding paper documents or erasing hard drive data.
The Federal Motor Carrier Safety Administration establishes the minimum background screening requirements for firms that hire commercially licensed drivers. If the company’s fleet operates commercial motor vehicles, it is subject to U.S. Department of Transportation and Federal Motor Carrier Safety regulations. The DOT driver qualification file requirements include: 1. An application that is signed and dated by the driver, with a 10-year employment history; 2. Three years of commercial driving experience; and 3. an MVR check at the time of hire, as well as annually or, in some cases, every six months.
Investigators should also ensure that clients are aware that DOT requires road test and certifications; written tests and certifications; a DOT physical; drug testing; a three-year record of inquiries of previous employers; certification of violations; review of driving records; a copy of a valid driver’s license; and other miscellaneous, but strongly recommended details.
Use of Infinity Screening software can ensure on-going screening of employees takes place. This proactive screening approach will contribute to vehicle or fleet safety, reduce liability, and ensure the organization is compliant with legal requirements.
Authored By W.Barry Nixon, SHRM- CMP
Due to the recent surge in class action lawsuits against employers who allegedly violated the Fair Credit Reporting Act, background screening has been under attack. But, in all truth, many of these mistakes could have been avoided had the employer followed the very clear guidance provided by the FCRA.
Even so, the trend has continued to rise since 2014, with a number of class action lawsuits being filed. We have compiled a list of some, in an effort to provide a “what not to do” when it comes to the very important background screening process.
In Graham v. Michaels Stores Inc., Case No. 2:14-cv-07563, U.S. District Court for the District of New Jersey Dec. 4, 2014, the plaintiff alleges that the company did not provide a stand-alone disclosure, however, the complaint states that the document was part of the application form.
In Peikoff v. Paramount Pictures Corporation, Case No. 3:15-cv-00068, in the U.S. District Court for the Northern District of California, January 7, 2015, Peikoff states that the company violated the requirement to include a disclosure in a document that “consists solely of the disclosure,” while the complaint alleges the form includes a release from liability.
In Doe v. Express Services, Inc.; Express Employment Prof.; and Palisade Services, Inc. CASE NO. 3:15-cv-00232, U.S. District Court, Northern Dist. CA, January 15, 2015, the plaintiff alleges that the company did not disclose the name and contact information of the screening company or provide a check box to indicate that the applicant would like to request a copy of the consumer report. This is in violation of the FCRA and California’s Investigative Consumer Reporting Agencies Act.
Other examples include a case in which the plaintiff alleged the Candidate Release Authorization form released the employer and screening companies from liability involving the background check and a case in which the complaint said the online onboarding form provided similar information.
And in one more case, a nursing home chain was sued after rescinding a job offer for an applicant after completing a background check, but failing to provide a copy and statement of her rights. A child abuse conviction from 1977 also was not examined to determine the employee’s level of involvement in the felony charge.
Many of the cases could have been avoided by following some simple FCRA rules, including notifying applicants about the background check as part of the employment process and provision of a Statement of Rights and results of the screening before action is taken.
It is recommended that employers re-evaluate background screening policies, procedures and practices, both internally and externally, in order to ensure compliance with the FCRA regulations. Be sure to share some of the costs incurred from FCRA class action lawsuits, such as K-Mart ($3 million), Domino’s Pizza ($2.5 million) and Swift Transportation ($4.4 million).
Authored By W.Barry Nixon, SHRM- CMP
At some point in time, employers will question the value of background checks. It is important for private investigators to better understand the cost benefit of conducting background checks so that, should the question arise, financial information and qualitative factors are readily available.
Common behaviors and situations employers seek to avoid include: Occupational fraud, including identity theft, stealing property and goods, embezzlement, information theft and occupational espionage; safety accidents and employee injuries; aggressive persons who could commit workplace violence or create a hostile environment; the expense and liability associated with negligent hiring lawsuits; verification of licenses, credentials and education; violations of immigration laws; high turnover; and extreme employee events.
There also is the impact of the bad hire on the rest of the team, said Dr. Janice Presser, adding that the better the existing team, the worse the damage will be.
And, finally, there is the adverse impact on present and future stakeholders.
Use of background screening helps ensure that the company finds the best employees for open positions and to help weed out potential problematic applicants. It is estimated that 90% of employers are conducting some form of background checks, but with a need for many to cut costs and save time, screening is given a second look.
Always consider the Return on Investment when deciding whether to conduct a proper background screening. This simple ratio is used by companies who are considering a major expenditure and includes dividing the Return by the cost of the Investment. For instance, an investment that is estimated as having probable returns of $10 million from a planned investment of $1 million would be said to have a favorable ROI of 9 to 1. It is important to use quality assumptions and accurate data to property estimate the potential return and likely required investment. Information that should be considered to calculate background check ROI includes: The cost of a bad hire is between 50% and 100%; 25% to 30% of thorough background checks uncover issues that an employer needs to review before proceeding; 1/3 to 1/2 of the applicants with problem background checks are not hired; a quality background check typically costs $150 to $300 each, depending on the position and applicant’s history.
As an example, assume:
1. A salary of $50,000/year.
2. The average cost of a bad hire is 100% of annual salary. Typical cost of a bad hire for this position would be $50,000.
3. An average of 10% of final applicants are not hired because of discovered problems.
4. $250 is the average cost of a thorough background check.
Calculate by $50,000 X 100% X 10% = $5,000. The ROI = Costs awarded / Cost of thorough background check OR $5,000 / $250 = 2,000%.
In summary, this employer would expect to avoid $5,000 of bad hire cost and an ROI of 2,000%! It is clear and definite that when you help an organization avoid hiring a problem employee it can save them a large amount of money, but it is up to the investigator to educate clients on this valuable screening information.
Authored By W.Barry Nixon, SHRM- CMP
Former Navy reservist Aaron Alexis murdered 12 people and injured others in a shooting incident at the Washington Navy Yard Sept. 16, 2013. Although he was honorably discharged, ABC news reported that the Navy wanted to give him a less than honorable general discharge because of misconduct, but Alexis avoided this by leaving service through the early enlisted transition program.
This presents the opportunity to focus on several points about a Private Investigator’s job to acquire, interpret and use job applicants’ military discharge information, which could include one of several types of discharge when they either voluntarily or involuntarily separate from any U.S. military branch. It is important for PIs to understand this information.
The DD-214 Military Discharge Paperwork of a discharged veteran lists his or her type of discharge, complete military history, full name used in service, service number or Social Security Number, branch of service, dates of service and additional information. This, according to Col. Robert J. Yost, director of the U.S. Army Transition Strategic Outreach office in Virginia, is the most reliable documentation for employers to use.
Researchers should be aware that to access the DD-214, an investigator must request a copy from the veteran or receive permission to request it from the National Personnel Records Center or National Archives at St. Louis. They will only release limited information from the Official Military Personnel File to the general public, although some information on military service may be accessible under the provisions of the Freedom of Information Act. According to Lisa Rosser, founder of The Value of a Veteran Consultancy, “only those veterans who hold active-duty status will have the documentation.
Employers and private investigators should understand that parts of the DD-214 reveal details that are considered confidential information. Questions that may be asked of a veteran include: Whether they have served in the US military; the dates of their employment in the military, if they are willing to self-identify as one of several protected cases of veteran, and the type of discharge received, but there must be a good business reason for doing so.
But be cautious when asking about discharge information and be sure to verify that the client has clearly established the job relevancy of needing to know this information. State and federal EEO laws don’t prohibit investigators from asking such questions, but it can be a touchy subject for the veteran. And, in some cases, the veteran may be protected by the American with Disabilities Act.
Those firms that have a significant commitment to hiring veterans clearly have a reason to ask about the veteran’s background and can set the criteria for this preference with legal limitations. Those employers who intend to ask about characterization of service should have this information indicated on their disclosure and acknowledgment form, but in any case, should focus their attention simply on an “honorable” or “favorable discharge.” Medical discharges or other administrative discharges also could play a part in a veteran’s discharge.
Types of discharge include honorable (considered favorable), general under honorable conditions (considered favorable), other than honorable (typically unfavorable, but depends on employment criteria), uncharacterized, bad conduct (unfavorable), and dishonorable (unfavorable).
Authored By W.Barry Nixon, SHRM- CMP
The importance of performing background checks is well-known, with more than 83% of both public and private organizations conducting them as part of the hiring process. But times have changed throughout the years and background checks not only are performed to ensure a safe and secure work environment, but also to provide an affirmative defense against negligent hiring lawsuits.
The County Criminal Records Check scans the county courthouse public records to determine if an applicant has a criminal record on file for crimes committed where the applicant has lived, worked and attended school. Felony information, misdemeanors and infractions are included and the county check allows access to the most reliable source of information to identify if an individual has a criminal record and information relevant for employment screening purposes. The Fair Credit Reporting Act determines the information that can be reported, as well as how far back the records can checked.
The Federal Court Criminal Record Check reveals any federal crimes committed within specified federal districts, crimes that cross state boundaries, or crimes committed on federal property.
The Statewide Criminal Records Check is compiled from information reported at the county level and includes prior criminal records searches, county criminal databases, department of corrections, administration of the court, and state sex offender registries. It is important to note, however, that the database’s accuracy is based upon the timeliness of the county’s reporting schedule. Be sure to verify any negative information with county courthouse records.
Multi-jurisdictional criminal record database is, perhaps, a more appropriate term for a Nationwide Criminal Records Check, given that there is no criminal database that contains all criminal records. Rather, information is gathered from prior county criminal records searches, county criminal databases, department of corrections, administration of the court, and state sex offender registries. This expansive check can be useful in gaining information that a county search may not have determined and is best to conduct for jobs that pose the greatest security risk or greatest potential to create liability for the organization. Remember to verify information at the county level and keep in mind that the quality of the information depends on when it is updated, limitations in geographical information and the accuracy of its sources.
A National Wants and Warrants search checks any outstanding and extraditable arrest wants and/or warrants registered with the National Crime Information Center. These serious felonies or offenses or outstanding county warrants that may be found mean that law encouragement agencies are actively seeking the individual, however, bear in mind that this does not determine guilt, nor is it a background check of the FBI’s NCIC database. This type of check should only be included as part of a comprehensive background screening.
Most states provide centralized sex offender services to the Department of Homeland Security, which houses a compilation of the state sexual offender registries.
And, finally, a Global Security Terrorist Search is compliant with the requirements set forth in the Patriot Act. This compilation of domestic and international sanctions lists detailed information regarding those who have engaged in money laundering and terrorist financing. Industries like financial services, import/export and travel must follow additional requirements. These terrorist searches should be performed for sensitive positions that involve wide access to facilities, information systems, significant responsibility for financial resources and access to highly sensitive information.
Authored By W.Barry Nixon, SHRM- CMP
According to Les Rosen, CEO, Employment Screen Resources, a leading background screening expert, social media is, perhaps, the hottest trend in background screening because it allows employers to literally look inside someone’s head. In fact, according to a recent research report by the Society for Human Resource Management, 76 percent of companies are using or plan to use social media sites for recruiting and 35 percent have eliminated job candidates based on information found on the Internet.
Facebook, MySpace, Flickr, LinkedIn, Twitter, blogs, Craig’s List and YouTube have become some of the most powerful screening tools available to businesses. It has been reported that the number of adults 25 and older using these sites is growing faster than teenage and college students and the amount of Facebook users has increased from 10 million to at least 500 million. In 2011, LinkedIn announced that it had reached 100 million users.
Through social media, businesses have inside access to personal views and behavior through the applicant’s writings and pictures. It isn’t uncommon to hear about a job applicant’s status being derailed because of the business conducting a simple Google search. Things like a racist rant on Twitter or binge drinking or drug use on Facebook all raise red flags for potential employers.
CareerBuilder.com revealed these additional reasons that applicants were rejected, many of which can be tracked to online sources: Provocative or inappropriate photographs or information; bad-mouthing previous employers, co-workers or clients; demonstration of poor communication skills; discriminatory comments; inflated qualifications; and sharing a pervious employer’s confidential information.
Despite the benefits to using social media as a screening tool, labor attorneys have reported the following problems that employers should be concerned about when using social media:
* Information considered should be relevant to the applicant’s potential to perform the open job and free of discriminatory information. This includes information like country of origin, pregnancy, age, disability or even page likes.
* The validity of information posted. Consider who posted the information and if the information is accurate.
* Violation of the applicant’s privacy rights. Millennials have different perspectives regarding privacy and work versus personal life. Most Gen Y workers do not believe a distinction exists between the Internet and non-Internet worlds.
* Violation of the principles of the Fair Credit Reporting Act. This includes getting permission, giving notice, providing transparency of the information obtained, advising the applicant if an adverse action has resulted and providing an appeal process. To ensure compliance with the FCRA, the Imperative Information Group recommends that the person conducting the research should have clear guidelines about what information is relevant the position.
Private investigators should consider taking the following steps when conducting searches based on social media: Have the client clearly identify information they are seeking and be certain that this does not violate any civil rights or privacy laws; because the FTC has ruled that searches of social media for employment purposes are considered to be a consumer report, the FCRA must be followed; validate all information; use only public profiles; request a copy of the client’s background checking policy to ensure that it addresses fair and uniform guidelines for conducting online searches; screen the more relevant sites for everyone and maintain the list of sites you screen; and, finally, keep detailed documentation and adhere to e-discover requirements.
Social media networks have become a part of society’s everyday norm. It is only logical that employers should use its information to determine the best applicant for an open position.
Authored By W.Barry Nixon, SHRM- CMP
Appropriately termed the “Pinocchio Syndrome,” hiring managers around the world are facing issues with applicants lying and misrepresenting their backgrounds during the hiring process, from educational and credential verifications, to employment history and criminal records checks.
In one such instance, a conviction was reported by 3rd Degree Screening, Inc., after a finding in the applicant’s background check disqualified her from working at a childcare center. The alleged denied the record, despite court records that proved the contrary. In the end, after extensive research, it was found that the applicant did not commit the original crime, but, rather, did steal the identity of her roommate to apply for the position.
This illustrates the importance of employers to conduct thorough background checks to verify the accuracy and truthfulness of information provided, as well as ensure that the applicant is competent, qualified and the right fit for the position and company.
A recent study revealed that 57% of employees in the U.S. will be looking for a new job this year, leaving their employers facing the cost of turnover, which can be estimated at 50 to 100% of the salary.
On the contrary, the Aberdeen Group recently reported that first year retention rates of new hires are 31% higher when a screening process has been completed.
Employers should keep in mind that part of this background screening process includes the verification of an applicant’s education. With more than 100,000 fake degrees sold annually in the United States through problematic diploma mills, these red flags should serve as an alert to take a closer look and dig a little deeper for information: Duration of time to earn the degree; credits that were mostly earned for “life experience”; university addresses that go to a P.O. Box number or suite; a university location in which the applicant has never resided (consider online degree programs, however); or schools that are not accredited.
In addition to fake degrees, companies like The Reference Store and CareerExcuse.com are offering to act as an employer to provide a great reference. Private Investigators should be prepared to identify if and when an applicant is using one of these services.
Companies should also consider continued screening throughout an employee’s tenure with services like Infinity Screens to ensure information is as current as possible. A pastor in the Southeastern part of North Carolina discovered the importance of screening even long-term volunteers and employees when a trusted attendee requested to begin working with youth, transporting kids using church vehicles. Fortunately, he contacted Edify Background Screening, who had previously paid the church a visit to share statistics on the “typical” sex-offender. The pastor was shocked to discover that his long-term regular attendee had been convicted of a sex-offense in another state years earlier, as well as a very recent DUI conviction.
It would be nice if the noses of job applicants, employees and volunteers would grow, just like Pinocchio’s did when he told a lie, but, unfortunately, it takes a bit more effort on an employer’s part to ensure their hires are everything they have reported to be, a discipline that is well worth the extra attention.
Authored By W.Barry Nixon, SHRM- CMP
Despite the debates and discussions at the federal level about new regulations to address the concerns about the impact of background checks on the nation’s high unemployment rate and the EEOC’s release of new guidance for conducting checks, there has been little movement in this area.
At one point, credit checks were a part of the hiring process, based on the belief that it was a measure of integrity, trustworthiness and stability, but, due to high unemployment, a massive meltdown in the housing industry, a record level of foreclosures and extensive layoffs, the importance of credit in background screening has been questioned.
According to Sarah Crawford, an attorney with the Lawyers’ Committee for Civil Rights Under Law, many credit problems are due to factors outside of a person’s control, including medical bills and identify theft.
Several state legislators acted to address the perceived issue, which was believed to impede peoples’ ability to get a job. According to the National Conference of State Legislatures, in November 2012, 40 bills in 19 states and the District of Columbia were introduced or are pending. Out of the total 41 bills, 40 address restrictions on the use of credit information. Eight states now limit employers’ use of credit information in employment.
California, for instance, signed into law a bill that “prohibits an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report for employment purposes under clearly defined positions.
It is believed that more states will become involved based upon the lingering high rate of unemployment. Private investigators should be aware that there must be a nexus between the credit check and job requirements when conducting a credit screening. Investigators who work with clients to fully understand the laws surrounding this issue will help the employer avoid discrimination and legal liability. Steer clear of blanket rules about use of credit checks and focus on specific positions where business necessity can be determined, such as banking and finance. Even so, it is important to consider the use of an individual assessment to review the specific individual’s background and circumstances.
Employers should also consider putting into a place a policy that covers their use of credit checks as part of their overall background checking policy. HireRight’s Employment Screening Benchmarking Report demonstrated that 69% of client respondents had not changed their credit check policy in the year prior, 26% had done so and another 5% was planning to.
For those who do use credit checks as part of their screening policy, it is imperative to stay in compliance with the FCRA by having a signed document from the potential hire, obtaing authorization for Internet applications, giving the applicant a copy of the report in the case of a rejection, and building a mechanism into the existing policy that ensures personnel involved with hiring are knowledgeable about the policy.
According to the Society for Human Resource Management, employers do slowly appear to be getting the message and reported that eight out of 10 employers hired candidates who had poor credit reports and two-thirds allowed candidates to explain why their credit information was negative.
In addition, the society’s president reported that 58% percent of those who conduct credit background checks do so after a contingent job offer has been made and 33% after the job interview. In those instances, 87% are in positions with financial responsibilities, 42% for senior executive positions and 34% for those with access to highly confidential employee information. Those surveyed reported their reason for conducting the credit screening is to reduce or prevent theft and embezzlement.
Authored By W.Barry Nixon, SHRM- CMP
Michigan-based company WebRecon recently reported that June court filings for FCRA lawsuits were up 34.5% over May and up 27.6% for the year, to date. Sixteen of the 409 FCRA cases filed in June were Class Actions. Some of the top courts included 102 lawsuits in Chicago, 77 in Los Angeles, 68 in Brooklyn, 61 in Atlanta and 48 in San Jose. States where CFPB complaints were filed included California (412), Florida (329), Texas (309), New York (178) and Georgia (157).
Those who conduct background investigations are aware of the Fair Credit Reporting Act that protects consumers while undergoing background screening. The law aims to ensure accurate reporting and dissemination of consumer report information, such as credit histories and background checks.
But it is important for employers to read the fine print to protect themselves from potential hires like Corey Groshek of Green Bay, who has threatened to sue at least 46 companies, including Time Warner Cable, Lands’ End, Burlington Coat Factory, Goodwill Industries and hhgregg. Roughly 20 of those companies have agreed to settle outside of court, granting Groshek more than $200,000 in settlements from the 562 jobs he has applied to over an 18-month stretch.
Groshek, like many others, has recognized this opportunity to sue over the technicality in the law that states “A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless a clear and conspicuous disclosure has been made in writing to the consumer … ”
It has been Groshek’s method to get to the point in the hiring process during which the company provides him with the FCRA required disclosure. From here, he alleges violations via a demand letter or the filing of a lawsuit. His demands include millions of dollars lost in trial or a six-figure settlement. When Time Warner didn’t settle with Groshek, all documentation, including demand letters, were submitted to the courts. Fortunately, a Wisconsin federal judge dismissed the class action, stating that the plaintiff was unable to prove any harm had been inflicted upon him as a result of the violation.
Even with one victory, Melissa Sorenson, executive director of the National Association of Professional Background Screeners, said employers should be aware of the potential for these types of law suits in the future. She encourages companies to conduct an audit of the disclosure and release form to ensure that they are compliant with all the laws of the FCRA.
Authored By W.Barry Nixon, SHRM- CMP
Although workplace violence is never easy to predict or prevent, reference checking is a step that can and should be taken to help reduce the risk of a tragic incidence.
The recent on-air shootings at WDBJ-TV that ended the lives of Alison Parker and Adam Ward illustrate the belief that in the case of workplace violence, it often is not preventable – but could it be?
To begin, it is questionable whether Vester Flanagan (a.k.a. Bryce Williams) should have been hired by the station in the first place. Even though the manager of WDBJ-TV stated that Flanagan’s background check yielded nothing but positive results, I question the type of screening that was conducted. Was it through an online internet service that is notoriously inaccurate due to missing data? Did the company run a criminal records check? (Surprisingly, most workplace violence incidents are not committed by people who have criminal records). Did they check his references? If so, did they dig a bit deeper and request to speak to an additional person who worked with the applicant? Secondary references will likely give more objective information since they were not chosen personally by the applicant.
It is understandable that saving time is crucial to every organization, but is it worth the expense to rush the valuable screening process? A good rule of thumb for any business is to complete at least three primary references and three secondary references before allowing a new hire to begin work. Too many organizations believe that it is too hard to get concrete information from previous employers and, therefore, forego the reference check. Or, perhaps the business doesn’t have the manpower in its HR department to conduct a thorough investigation. Regardless of the reason, it is important to implement a rule that enforces the importance of completing reference checks.
Another great idea is to use your network to contact individuals who have worked at the same company as the applicant. This off-the-record conversation with a trusted colleague can turn up some useful information, while paying off in dividends.
Consider this information regarding the Flanagan case:
Prior to his employment with WDBJ, Flanagan was with WTWC-TV in Florida. Two women who pointed out mistakes in Flanagan’s reporting were so verbally abused that they feared for their lives. It has been said that no one at the station shed a tear when he left. In all reality, had a direct connection been made during reference screening, perhaps knowledge of this information could have prevented a tragedy.
Flanagan later applied for a position with another media outlet in Huntsville, Ala., but was rejected after a half dozen references reported that Flanagan “was exceedingly difficult to work with” and that he even had gotten into a physical altercation at company Christmas party.
Another great tip comes from Mel Kleiman in his article, “Withholding employee references: It’s time to stop the insanity.” He recommends that organizations have departing employees sign a Reference Release Form, in which the employee chooses which work-related behaviors should be shared in future reference checks. Those who only choose positive attributes or none at all should raise a red flag.
Authored By W.Barry Nixon, SHRM- CMP
Negligent hiring. Workrights Institute and TalentWise each agree that this “failure to use reasonable care in the selection of an employee when there is a foreseeable risk of harm to third parties” could be avoided if employers would get serious about their background screening process.
In cases of negligent hiring, employers can be held liable for harm that comes to any of its employees due to hiring an employee whose background should have been flagged as a potential risk. Legal counsels and security managers have cemented the view that hiring a person with a history of criminal behavior as indicated by arrest and conviction records was a predicting factor of the likelihood of putting the employer’s property or employees at risk.
But, there is a “dirty little secret about negligent hiring” that demonstrates that after several years of having successfully re-integrated into society and maintained employment, the risk of an ex-offender reoffending is no higher than the rate for someone with no criminal record. Given the actual number of cases of negligent hiring lawsuits, this traditional reason for not hiring ex-offenders begins to change. Ex-offenders should be given the same individual merit-based evaluation as other potential employees.
According to Workrights Institute, only 92 published decisions of negligent hiring have been reported in 28 years – or an average of roughly three cases each year out of millions of labor related lawsuits filed annually in the United States. Further, the report states that the chance of an employer successfully being sued for negligent hiring is a fraction of 1%.
The importance of performing a comprehensive background check for all potential hires is not dampened by these results, however. The screening should include checking records for at least seven years (or more for high-paying and senior jobs) for each place the applicant has lived and/or worked. Federal records also should be checked, as well as a multi-jurisdictional national database to review a wider web of records. It would be extremely difficult for a jury or judge to determine a lack of due diligence if a proper screening process is completed.
Despite the low number of negligent hiring cases, the Workrights Institute report also showed that “Employers won 18 of these cases and that the number of cases in which the plaintiff prevailed was 74.” With that said, though, employers are losing 80% of these cases and the possibility of a successful legal claim can result in large jury rewards, such as the $26.5 million case against a home health company who hired a visiting nurse who killed a patient. A background check would have revealed the employee’s history of felonies.
Workrights Institute has revealed that multiple convictions, use of “heavy” drugs, and a history of threatening behavior all should raise red flags as predictors for possible future problematic activity.
In conclusion, although a criminal record does not necessarily mean potential harm for a business or its employees, it is important to proceed with a comprehensive background check, especially for jobs that have been identified as having high risk or are characterized as sensitive. This, paired with knowledge of the EEOC Guidance on Using Arrest and Conviction Records for Hiring, employers could save their company millions of dollars and the risk of potential harm to its employees.
The Emergence of Infinity Screening: Moving Background Screening from Pre-hire Problem Identification to a Threat Management Tool that Helps to Mitigate Risk
Authored By W.Barry Nixon, SHRM- CMP
Despite more than 90 percent of all businesses and organizations conducting some sort of pre-employment background check, Infinity Screening (also called continuous screening, reoccurring screening and post hire screening) is causing changes within the screening industry. This process includes conducting background checks on current employees on a periodic or on-going basis to stay informed about life changes that could create increased risk for organizations.
The term infinity screening has been around since 2006, when technology allowed for companies to conduct on-going or reoccurring screening. HireRight reported in 2015 that 46 percent of their survey respondents were conducting re-occurring background checks, up from 32 percent from 2014.
Infinity screening has become more and more popular because employees are realizing that pre-hire detection of problem behavior isn’t enough to thoroughly understand the risk employees may pose for their business. These risks include theft, embezzlement, identify theft, industrial espionage, data breaches, reputation damage and workplace violence.
Using personnel risk assessment technology in a continuous screening model, organizations now are able to evaluate risk post-hire as life events and identity data evolves. Technology also helps organizations visualize threats and prioritize based on various factors. For instance, the transportation industry may weigh a DUI as a greater risk than the finance industry.
One company that once performed an initial background check and followed up with checks every three years after, began continuously checking public records for everything from DUIs to bankruptcies. The company now is alerted when a worker is arrested or convicted for something that would trigger a concern for the employer. Alerts identified three workers who had died, uncovered a first-degree murder conviction for one worker and exonerated another who was a victim of identity theft.
Acme XYZ company wanted to address the following concerns regarding its screening process: It is bound to standards based on the DHS, TSA, FCRA and EEOC; it is required to conduct pre- and re-screening upon every three-year anniversary of more than 30,000 employees; the current background screening requirements do not provide consistent, timely and accurate risk assessments for each employee; and its policy requiring employees to self-report violations of their policies or significant life events is ineffective.
During a three-month trial of a continuous monitoring service, more than 800 identify thefts were identified, 24 of which had the potential to disqualify the noted persons from employment. Other findings included possession of stolen property, intent to sell drugs, assault 1st degree, and multiple sexual offenses. The level of risk was dependent upon the nature of work and sensitivity of the job performed, but the monitoring allowed the employer to make better-informed decisions.
Employers should understand that using continuous screening does not equate to automatic termination, but rather should be used as a tool to highlight possible threats within the workplace. An individual assessment can help further investigate the findings.
Authored By W.Barry Nixon, SHRM- CMP
As the publisher of The Background Buzz, the leading newsletter for the professional background screening industry, my monthly preparation involves reaching hundreds of articles and publications that deal with hiring, recruiting, talent management and acquisition, from business journals and blogs, to management publications.
I would like to focus on the “magnificent seven” key trends, but first I want to highlight some that I find to be inherently obvious. This includes the current binge of class action lawsuits for FCRA violations and the use of mobile devices in consumer marketing and selling.
Those that have been chosen for the top seven trends include good and bad news for firms involved in conducting background checks. Some track with the growth in the job market, which will cause an increase in the demand for background screening services and others that involve emerging technologies and their effect on the mature industry of background screening.
1. Ban-the-Box will become the Norm
With many states naming some form of variation of Ban-the-Box laws, it is only a matter of time until a national debate will ensue about the need for one overarching federal law for all employers.
2. Pre-hire Reference Assessment Tools to Rise
With technology making it easier for employees to work from just about anywhere, a recent study revealed that 53 million Americans now freelance – or 34% of the country’s workers. Background screening can be a challenge to perform on someone who is their own boss, but reference checking with a freelancers’ customers can assist, while also fueling the growth of online pre-hire reference assessment tools.
3. Fast Hiring Will Drive Changes in the Fundamental Way Background Checks are Performed
Capital magazine reported that it can take 42 days, on average, to hire someone. But with advances in connectivity, websites, accessibility and communication platforms, the hiring process can take as little as three days to complete.
4. High Turnover Trends Will Feed the Increase in Growth of Background Checks
Many employees who stayed in their current positions to ride out the recession now are ready to take the leap, leaving HR departments shaking their heads at the increase in turnover rates. Bad for employers, but great for background screening firms!
5. International Background Screening Will Continue to Grow
China is leading the way in international background screening, but more companies are entering the marketplace. Right out of the box, though, was a lawsuit filed by a rejected applicant about improper use of background checks and prison terms one firm’s violation of privacy laws. Background checks now are required to work at schools in India and will likely become the mainstream, stimulating growth in the background screening industry.
6. Big Data Will Change Everything
The focus on talent and hiring technology likely will soon emerge with the current hiring frenzy intensifying. Big data, coupled with the right technology, can provide new insights and predictive patterns into employees, leading to improved recruitment and talent acquisition decisions and a strain on the need for a background check.
7. Move over LinkedIn
It is my prediction that a new contender that will be FCRA compliant and will give traditional background screening companies a run for their money will compete with LinkedIn as the top B2B social media outlet used for job screening and pre-employment screening.
Authored By W.Barry Nixon, SHRM- CMP
With more and more private investigators conducting background checks, it is important to understand the seven-year reporting rule and the details regarding when the clock starts ticking after a conviction and prison time.
According to the Fair Credit Reporting Act, unless the individual is reasonably expected to earn more than $75,000, there is specific information that cannot be included in a background investigative report, including: Bankruptcy cases that antedate the report by more than 10 years; civil suits, civil judgments and records of arrest that antedate the report by more than seven years; paid tax liens that antedate the report by more than seven years; accounts placed for collection or charged to profit and loss, which antedate the report by more than seven years; and any other adverse item of information that antedates the report by more than seven years.
In 2003, the FCRA was amended to allow the reporting of conviction information without limitation in civil suits, civil judgments and records of arrest, as well as other adverse information, however arrest records may not be reported beyond seven years, bearing in mind the $75,000 income rule.
A case in the ninth circuit Moran v. The Screening Pros LLC (Case no. 12-57246) is an example of when information can be reported. The lower court ruled that the records were reportable for seven years starting at the date of the disposition, release or parole, however, the question before the Ninth Circuit is the premise that the lower court based its decision on a paragraph that was removed from the FCRA in 1998.
It should also be considered that 11 states also have seven-year reporting rules. California, Montana and Nevada prohibit the reporting of convictions where the date of conviction, release from parole or completion of probation precedes the report by more than seven years. California also prohibits the reporting of misdemeanor convictions where probation has been completed and misdemeanor marijuana possession convictions that are more than two years old. Hawaii prohibits the reporting of conviction information where the date of conviction, release from parole or completion of probation preceded the report by more than 10 years, while others prohibit the reporting by more than seven years unless the individual is expected to earn more than the threshold annual salary.
Massachusetts also prohibits the porting of a misdemeanor conviction where the date precedes the report by more than five years, unless the individual has another conviction without in the five years immediately preceding the inquiry, as well as the reporting of misdemeanor convictions for simple assault, disturbing the peace, affray and public drunkenness.
Some states also prohibit the reporting of other non-criminal information beyond certain time limits. California, for instance, limits the reporting of bankruptcies that antedate the report by more than 10 years, suits that predate the report by more than seven years and any other adverse information that antedates the report by more than seven years.
And still other states limit the reporting of information, unless the individual is reasonably expected to earn more than a certain income level, from $20,000 to $75,000, based upon the state. Bear in mind, however, that, in order to be incompliance with FCRA regulations, an individual’s annual income must be $75,000, regardless of the state.
It is important to also consider cases in which an individual has successfully completed a diversion program or received a deferred adjudication subject to the successful completion of the terms of probation. The state of Georgia prohibits reporting of arrests where the individual has been released under the Georgia first offender law, while Michigan prohibits the reporting of misdemeanor reports unless the case is pending or there has been a conviction.
Authored By W.Barry Nixon, SHRM- CMP
Job descriptions often include educational requirements that have been developed based on extensive analysis of job requirements and the level of knowledge needed to successfully perform the work. In addition, a professional license or certification also may be required. Certification criteria varies from field to field, but includes a specified amount of experience, passing a rigorous examination, and a specified amount of continuing education, as well as earning other certifications.
It is important for all companies to verify educational and certification requirements have been met by possible applicants. Some employers focus on verifying the highest level of education obtained, assuming that lower level expectations would have also been met. When conducting education verification, the focus should be on the school attended, dates of attendance, field of study, major or minor, grade point average, degree earned, and date of graduation or last attendance. Some may even request transcripts. Employers should ensure the proper address and location of the school, the name used by the applicant while in attendance and the social security number of the applicant at the time of attendance to be sure the right person is being investigated.
It is also advisable to subscribe to a fee-based verification service, primarily provided by the National Student Clearinghouse. The Clearinghouse maintains an electronic database of student records for each college represented and is great to have in place should the employer choose to outsource the entire background check and verification process. Employers should have a consent and authorization form signed by the applicant in order to use such services.
Planning is an essential part of the educational verification process and employers should recognize possible setbacks in getting this information in a timely manner. For instance, some schools may not be open when records are needed, schools may freeze records due to outstanding debts to the school or offenses committed by the student, and privacy policies may serve as a barrier, as well. Explaining this information to the potential hire is an important part of the process.
In the event that information comes back unverified, check to be sure that the school is not listed as a diploma mill by visiting the Council of Higher Education Accreditation Database of Institutions and Programs Accredited by Recognized U.S. Accrediting Organizations, the USDE Postsecondary Education Institutions and Programs Accredited by Accrediting Agencies and State Approval Agencies Recognized by the U.S. Secretary of Education. Whether listed on one or both, consider the organization “recognized.” Fee-based services such as www.accredibase.com and http://ww.geteducated.com/diploma-mills-police) also can be used to determine the status of a school.
Verification of professional/occupational license and certification verification involves providing a consent and authorization form signed by the applicant to the licensing or certification organization, in an effort to determine if the license or certification is current, when its expiration date may be, and the details surrounding a suspended license or certification.
An integral part of the screening process, education verification can contribute to the successful selection of a qualified candidate.
Authored By W.Barry Nixon, SHRM- CMP
Four years ago, the Equal Employment Opportunity Commission issued new guidance regarding background checks that would address the rise in conviction rates generally, and the disproportionately high conviction rates of African American and Hispanic men. The Enforcement Guidance would amend the increased availability and ease of the use of criminal background checks by employers.
The EEOC based these changes on its belief that decisions based on arrest are not job related and consistent with business necessity, but should be considered case by case. The cases in which an applicant is not considered could run afoul of Title VII of the Civil Rights Act of 1964. Employers should consider 1. The nature of gravity of the offense of conduct; 2. The time elapsed since the offense, conviction or completion of sentence; and 3. The nature of the job for which the applicant has applied.
The Guidance recognizes that Title VII does not necessarily require individualized assessment and that certain industries, jobs and situations are not required to follow this policy. The EEOC also pointed out that compliance with federal law, such as the FDIC Act, as well as compliance with federal statutes and registration, is a defense to a claim on discrimination under Title VII. It also was noted that Title VII preempts state laws that conflict with it, but that it is likely that an individual’s ability to satisfy state law requirements for conduct of a specific position is a qualification that is job related and consistent with business necessity.
Private Investigators should consider the following Client Considerations:
* If there isn’t yet a background screening policy in place, create one.
* Review any existing policies to ensure compliance with the new guidance. Make adjustments where necessary to ensure practices are justified as job related and consistent with business necessity.
* The client should conduct an in-depth job analysis to develop clear criteria that addresses the specific offenses that may demonstrate unfitness for performing the position and the duration of exclusions for criminal conduct.
* Establish an individual assessment process for candidates that reviews the circumstances specific to the individual, including the number of offenses; the age at the time of conviction or release from prison; evidence that the individual performed the same type of work in the past; the length and consistency of employment history; any rehabilitation efforts; and whether the individual is bonded under a federal, state, or local bonding program.
*It is important to understand and follow the current FCRA requirements to advise individuals that an adverse action has been taken based on their background check, along with giving the applicant the opportunity to appeal.
* Develop and implement training for recruiters and job interviewers in the use of the new or revised policy that reflects the EEOC’s Guidance.
* Develop an online refresher training that will cover the essential points as a requirement for each supervisor who opens a position.
* Review employment application and job posting policies.
* Ensure that all applicant and employee criminal records remain confidential and only used for the purpose for which it was intended.
To see the full context of the Guidance and announcement, visit www.eeoc.gov.
The National Background Investigations Bureau (NBIB) Could Deliver a Fatal Blow to the U.S. Background Screening Industry
If you read the February edition of The Background Buzz (see http://goo.gl/0iBHZ1) you likely saw the article, The Way Forward for Federal Background Investigations which discusses the U.S. Federal Government’s announcement of a series of changes to modernize and strengthen the way that background investigations are conducted for Federal employees and contractors and protect sensitive data. The changes include the establishment of the National Background Investigations Bureau (NBIB), which will absorb the U.S. Office of Personnel Management’s (OPM) existing Federal Investigative Services (FIS), and be headquartered in Washington, D.C. This new government-wide service provider for background investigations will be housed within the OPM. Its mission will be to provide effective, efficient, and secure background investigations for the Federal Government. Unlike the previous structure, the Department of Defense will assume the responsibility for the design, development, security, and operation of the background investigations IT systems for the NBIB. The article can be viewed at https://goo.gl/wIOe12
When I read about this the Criminal Records Bureau (CRB) which has morphed into the The Disclosure and Barring Service (DBS) in the United Kingdom instantly came to mind. In the UK the DBS is the governments entity that processes request for criminal records checks. While the announcement of the NBID is not the equivalent of the DBS, in my mind, it does not seem so far-fetched that based on the right (or wrong set of circumstances) occurring and unforeseen political events we could end up going down that road. Remember the set of unforeseen events that led to the creation of the NBIB due to the demise of USIS, who dominated the government space, as a result of accusations of fake reports, significant backlogs, missing key information in the background check of the shooter at the U.S. Naval yard and “the straw that broke the camel’s back” the humongous data breach at the OPM. It was a perfect storm of unanticipated events that coalesced and culminated in the creation of the NBIB.
I am raising a ‘What if?’ question regarding the NBIB and applying one of the principles of systems thinking’s ‘law of unintended consequences.’ The law of unintended consequences as defined by Businessdictionary.com is described as a set of results that was not intended [or anticipated] as an outcome or put another way as stated in an old saying “things do not always turn out as we expect.”
When I posted this same issue to Linkedin one person asked “What exactly was the issue I see the NBIB posing?” and I reiterate that I do not see NBIB in its current format significantly impacting the background screening industry. In fact, it will pose little, if any threat at all. However, the point I am raising is that it could be the first step in the direction of the government moving towards setting up a central repository for criminal records. This is not the reason the NBID has been set up nor do I think there is some clandestine plot to move in this direction, however, I am simply raising the possibility that another ‘political storm’ of unforeseen events could make it politically expedient to make the leap to combining the NBIB with the FBI’s NCIC and then you have the central repository. Its pure food for thought, but stranger things have happen.
Let me know what you think?
Data reported by background screening companies have consistently shown that 30 to 50percent of job applicants misrepresent themselves and/or outright lie on their resume. While there is universal agreement that applicants falsifying their resume is problematic the fact is that it is not illegal. However, hiring a person based on what is presented in their resume can lead an employer down the path to some very hot legal waters.
Consider the following:
Professional Licensing Issues
Your organization business could end up in getting sued if you hire an unlicensed professional or someone’s license that has expired to perform the professional duties in fields that require a license to practice and someone is harmed. Classic examples would be someone serving a medical doctor that is not licensed or providing legal counsel with a law degree.
Hiring someone who is unqualified to do a job is risky business, your customers or patients could sue you for negligence if they are harmed. Although you may be able to sue the person who lied, you will have to demonstrate that the lie caused your business harm and that you could not have known the person was lying (if you did not perform a background check ‘good luck’ with proving that)
Did you know that once you have discovered an employee lied on her resume, you might not be able to immediately fire her.If the employee has an employment contract or your state requires termination for cause, you may have to prove the lie or show that the employee is otherwise unqualified. Before you move to terminate the employee be sure to keep detailed and specific documentation of the employee’s performance short comings, mishaps and incidents. Also talk to the employee about the purported lie on their resume to provide them an opportunity to offer an explanation. If you falsely accuse someone of lying on her resume, you could be vulnerable to a wrongful termination suit and furthermore, if you end up in front of a jury it will look good that you gave them a chance to explain and who knows it might be your luck day and she actually admits it was a lie.
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Pam Devata Shares Her Views on Issues of Concern and likely Future Issues
PamDevata, is a partner in the Labor and Employment Practice Group of Seyfarth Shaw LLP. She specializes in all aspects of employment defense including counseling, training, and litigation and has a special emphasis on the Fair Credit Reporting Act (FCRA) and state laws effecting background screening.
The start of employment drug screening can be traced back to the 80’s and President Ronald Reagan. President Reagan issues executive order 12564, on September 15th, 1986 and it established a goal of a Drug Free Federal Workplace.
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