Effective Pre-Employment Background
In today’s competitive economic environment, firms cannot afford to be side-tracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers have increasingly turned to pre-employment screening as a critical risk-management tool to try to avid hiring problem employees in the first place.
At the same time, companies are becoming more cost conscious as well. Despite the obvious benefits of pre-employment screening, management often expects security and human resources professionals to produce more results with fewer resources. The challenge facing security and human resources professionals is finding ways to implement an effective pre-employment screening program that is also cost-effective.
Such a program has four goals:
– First, the program must demonstrate that an employer utilizes due diligence in hiring. That means that an employer takes reasonable steps to determine a job applicant is fit for the job. This can protect an employer from claims of “negligent hiring.”
– Second, effective screening obtains factual information about a candidate, to supplement the impressions obtained from an interview alone. It is also a valuable tool for judging the accuracy of a candidate’s resume.
– Third, effective pre-employment serves to discourage applicants with something to hide. An applicant with serious criminal convictions is less likely to apply at a firm that announces it does pre-employment background checks.
– Finally, a background-screening program should encourage applicants to be very honest in their applications and interviews. Since applicants are told there is a background check, they have a motivation to reveal information about themselves they feel may be uncovered with a check.
Many firms view pre-employment screening as a process that starts after an applicant has been selected by a hiring manager or department, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security. In a typical screening program the emphasis is on checking for criminal records, as well as other background searches that are commonly available.
An effective background-screening program, however, is much more then just checking criminal records after a candidate has been selected. In fact, an effective background screening program starts even before the first resume is received or the first interview is conducted. It requires a company-wide commitment to a safe hiring by everyone involved with hiring. Recruiters, hiring mangers and interviewers must understand safe hiring practices are not something someone else takes care of after they make a hiring decision. It is part of their responsibilities as well.
The following steps can increase the effectiveness of a screening program. However, they all take place before a hiring decision is made and before a background report is requested. They also take relatively little time and money compared to the benefits a firm receives.
These nine steps rely upon two vital factors. First, they utilize multiple and overlapping tools that approach the task from different directions. There is no one screening tool that all by itself guarantees an effective screening program. Second, they require the department in charge of background screening to recruit and educate everyone in the hiring process to become involved in safe hiring, starting with the person who places ads in the newspaper.
These nine steps are:
1. Job announcements, such as newspaper ads, should clearly indicate the firm requires background checks. This discourages an applicant with something to hide by clearly stating in the public announcement for a job opening that the company does screening. Employers find good applicants are not discouraged from applying at companies that do background screening. Employees are just as anxious as employers to work in a safe environment with qualified and honest people.
2. All applicants must sign consent for a background check, including a specific consent for criminal records at the time they submit an application or resume. This serves two vital functions in the screening process. First, it makes it very clear to a job applicant that criminal records will be searched. An applicant with a criminal record they want to hide may apply instead with a firm that does not perform screening. Second, some individuals may voluntarily disclose a prior difficulty. For some positions, a minor criminal violation honestly disclosed may not necessarily eliminate a person from consideration if the criminal offense is not related to the job.
There are some companies that do not use application forms, but instead hire based upon resumes. In that situation, a company can prepare a supplemental release form for the applicant to complete and sign. Some firms include a supplemental sheet in their applications asking a candidate specifically if they have any concerns about a background screening and whether there is anything they wish to bring to the company’s attention. This is an excellent device to focus applicants on the fact a thorough investigation will be conducted as part of the hiring process.
3. Include language in the consent concerning a release of records from foreign countries. Doing pre-employment screenings and criminal record checks in foreign countries can be difficult and expensive, and in many instances are not even possible. One approach, however, is to add specific language to a background form indicating the release to search for criminal records also applies to any jurisdictions outside the United States. That may cause applicants from abroad to either self-disclose problems or apply elsewhere.
4. Applicants should be asked directly if they have a criminal record in the interview and employment application. It is crucial that applicants be asked directly during the process if they have a criminal conviction or pending case. Ideally, that language should be in the employment application. During oral interviews, part of the standard questioning should be, “If we were to check with the courts, would we discover any criminal convictions or pending cases?”
In asking about criminal records, employers should keep the following in mind:
a. Always ask the broadest question allowed by the law in your state. Some employers are under the mistaken belief they can only ask about felonies. However, misdemeanor convictions can also represent serious crimes, and should be included as allowed by state law.
b. Employers should carefully phrase the question in order to not elicit any information about arrests not resulting in convictions. Employers are generally limited to convictions or pending cases.
c. Ask the applicant to describe any convictions or pending cases and give the specific location. This allows the employer to pull the court file and to determine if the applicant is truthful about the nature of the criminal case. It is also critical to ask for the exact location so the employer or background checking company knows exactly what court to search.
d. In any written application or release asking about criminal convictions or pending cases, the form also should contain the language to ensure compliance with discrimination laws. For example, “This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company, however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.
5. The employment application must clearly state that any false or misleading statements or material omissions is grounds to terminate the application process, or to terminate employment if it has begun, regardless of when the information is discovered. This is another critical part of an effective program. Employers generally cannot deny employment automatically because of a criminal conviction without taking certain factors into consideration. However, where a person has lied on their application by not admitting a prior criminal conviction in a response to a direct question, the lack of honesty is a valid reason for a rejection. An applicant needs to clearly understand dishonesty can lead to termination no matter when it is discovered.
6. If the background screening may not be completed before the start date for the position, make sure the applicant understands any employment is conditioned upon the employer’s receipt of a background report that is satisfactory to the employer. Sometimes employment will begin prior to the background report being completed. In those situations, it is important to notify the applicant, preferably in writing, that employment is subject to the employer’s receipt of a background report. It is also important the employer clearly state the background report is subject to the employer’s satisfaction only, so a job applicant cannot debate whether a report is satisfactory or not.
7. Check past employment references. Checking references is an essential part of the screening process. In fact, it can be just as valuable as a criminal records search. It would be difficult, if not impossible, to defend an employer sued for negligent hiring that failed to confirm a person’s past employment history. Even if previous employers limit the information to just start date, end date and job title, that information is still invaluable. The primary purpose of such a search is to confirm an applicant’s whereabouts for the past five to seven years and to make certain there are no unexplained gaps in employment. By knowing where a person has been, an employer limits the possibility that an applicant spent time in custody for a criminal offense.
It also assists an employer in determining what jurisdictions to search for criminal records. This is important because there is no such thing as a national criminal record search for most employers. Employers can only obtain criminal records by searching individual courthouses. Since there are more than 10,000 courthouses in America, it is important to know where to look.
Of course, an uninterrupted work history does not guarantee a lack of a criminal record. Some jurisdictions allow jail sentences to be served on weekends or through a work furlough program where a prisoner is released during working hours. However, when done in conjunction with all the other steps, checking past references is a vital part of the program.
8. Obtain a listing of all past addresses. Another important step is to include on the consent form a listing of all addresses for the past seven years, as well as the approximate time at each address. This not only reinforces in the applicant’s mind that the company is serious about screening, but it assists the employer in determining which jurisdictions to search for criminal records.
9. Include future screenings in the consent language. Every consent form should include language that the consent for a background screening allows for future background checks for purposes of promotion, reassignment or retention, unless otherwise revoked in writing. This serves three important purposes. First, it reinforces the idea the employer is serious about maintaining a safe workplace. An employee is on notice that they are subject to future investigations. Second, this language facilitates future investigations if necessary for claims of harassment, theft, violence or other difficulties. Finally, the language is also important due to recent interpretations of the federal Fair Credit Reporting Act, the federal law that governs pre-employment screening by outside agencies. This language in the release form makes it easier for an employer to utilize the services of an outside agency to conduct future investigations if workplace issues arise.
In addition to these nine steps, an employer also must perform additional checks to satisfy due diligence. The most important of these are courthouse searches for criminal records. There are other checks that can be performed as well. However, these preliminary steps that occur before a person is even hired can dramatically increase the effectiveness of a screening program. These steps also have the advantage of promoting workplace safety with very little additional costs. By enlisting everyone in the hiring process from the beginning, firms can dramatically increase the effectiveness of their screening programs.
Lester S. Rosen is an attorney at law and President of Employment Screening Resources, a national background checking company located in California offering employment screening services such as employee background screening, job verification, and credential verification.
He is the author of, “The Safe Hiring Manual–Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” (512 pages-Facts on Demand Press), the first comprehensive book on employment screening.
He is also a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. He has qualified and testified in the California, Florida and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. His speaking appearances have included numerous national and statewide conferences.