Employee

Accurate Employee Background Checks

employee background checksThere is no bigger issue for the background screening industry in 2013 than providing accurate employee background checks.  This is a paradigm shift because the screening industry has historically provided low quality products and services. Sadly, low quality, cheap, incomplete criminal record checks continue to dominate the volunteer screening market.  Organizations placing children and vulnerable populations at risk because they have been convinced by savvy sales reps that you can conduct a quality volunteer background check for under $10.

Sorry, can’t be done.

Well, that is another article.

The focus on speed and cheap background checks has now impacted the entire employment background screening community.  I have been preaching against this horrible practice since the day I launched Safe Hiring Solutions.  And I will continue to scream and demonstrate that quality volunteer and employee background checks can be done cost effectively.

Here is how the low quality standards that permeate the screening industry have had a negative impact:

  1. Greater scrutiny from the EEOC.  The EEOC 2012-16 strategic plan targets background checks.
  2. More states passing legislation to restrict the use of criminal background checks.
  3. Proliferation in media coverage of cases where inaccurate background checks harmed people.
  4. Lawsuits alleging inaccuracies or not following the FCRA are increasing.  The most recent is a case brought by the federal government against a large background screening firm for not following the requirements of the federal Fair Credit Reporting Act.  The screening firm settled for $2.6 million in 2012
  5. Greater risk to organizations because violent offenders are sneaking through the process.

Technology is a wonderful thing.  It has contributed to quick and affordable quality background checks.  However, no technology can provide an instant background check or a quality background search for $10.

So the key takeaway is accuracy is important.   It should be the #1 question you ask.  Not “how much does this cost.”

The responsible use of employee background checks is important (i.e. no zero tolerance policies).

The federal Fair Credit Reporting Act exists to provide consumer protections.  So it is critical that you understand your obligations under the FCRA.

One of the most important organizational decisions you will make is selecting a screening partner who:

  • Provides the most accurate information available
  • Provides the reports in a timely manner (remember instant is not quality)
  • Is committed to the integrity of the Fair Credit Reporting Act
  • Will help you understand your legal obligations
  • Will help you navigate the myriad of ever-changing federal, state and local laws

If the don’t, you may find yourself in a legal hot seat.

4 Reasons You Should Be Conducting Current Employee Background Checks

employee background checksAll too often employee background checks are synonymous with pre-employment background checks.  Unfortunately, if our criminal record check policy is a one-and-done process then we expose our organization to unnecessary risk. Background screening, like health insurance, is an ongoing requirement.  The bad news is we will not see ObamaScreening in the next 4 years.  However, the good news is high quality background checks are extremely affordable, unlike healthcare.

There are 4 reasons you should be conducting current employee background checks:

  1. Employees who pre-date background check policy.  The background screening industry is literally still a toddler.  Even with the proliferation of criminal records checks after 9-11-01, this was focused on pre-employment checks and leaves a large pool of current employees that have never had a criminal background check.
  2. A lot can change in 20+ year career.  Simply conducting pre-employment background checks will not be enough to protect our organizations.
  3. Criminal background checks are time sensitive.  The minute a background screening report is returned, it is a historic document.  What does that mean?  Well, your candidate could commit a crime tonight and it would not be reported in the screening report completed earlier today.  Recently, one of our large school district clients inadvertently ordered a re-check on an employee.  The employee had a pending felony theft case and when we called the school to notify them, they were shocked.
  4. Negligent Retention.  We hear a lot about negligent hiring.  However, the twin sister of negligent hiring is negligent retention.  Basically that as an employer becomes aware or should have become aware of problems with an employee and you take no corrective action (investigating, reassignment or termination).  Ongoing background checks provide protection against the “becomes aware or should have become aware.”

Implementing a current employee background check program is very simple.  Yes, it does require a policy change and articulating a business necessity (protect our employees, customers, etc).  And yes, you will hear some grumbling from employees.

We have also created technology that makes screening existing employees easier.  First, we can enter a date in your account, such as 5 years, and then you will receive a monthly report of any employee who has a background check expiring in the next 30 days.  You simply check the employees you wish to re-screen and email it to your account representative who uploads it to our system.

Or you can use our “paperless” process where we program a link that can be placed on your website.  Your employees click on a link, sign and e-authorization, input their information and initiate a background check.  You even have the option of adding a merchant account if you require employees to pay for their background checks.

Join us on 11/28/2012 at 2PM EST for a FREE webinar:   Should We Be Screening Existing Employees?  Click here to register.

Post 9/11 World of Employee Background Checks

employee background checksThis morning reminded me so much of the morning of 9-11-2001.  Crisp, clear and sunny.  Innocent. I remember jumping in a cab early that morning in Washington DC as the city was waking up.  I had two appointments.  First, I was speaking to a group of federal probation officers on preventing violence against women and children.  Then after lunch I was heading across the river for a meeting with the Department of Defense Task Force on Domestic Violence.  I never made it across the river (thankfully).

I was reflecting on that day during my morning commute.  I was thanking God for protecting me that day.  I was also thinking about how 9-11 impacted employee background checks.

The young background screening industry exploded immediately after 9-11.  Our sense of safety and security had been stolen.

I can remember boarding a plane the day flights resumed for a cross-country flight and realized immediately our world had changed.  Security screening was intense.

Gone were the days when you pre-boarded a plane and focused on your work, laptop, mobile phone (no iPad yet) or book.  Every passenger was studying each person boarding the plane, looking for any sign of a potential terrorist.

We were on heightened alert.  Highly sensitive.  Focused.

Then I noticed over the years that this started to fade.  We started to fall back into our old patterns and habits.

And we have seen the same type of shift in employee background checks.  The pendulum has swung a different direction.

The EEOC has made criminal record checks a high priority with their 2012 strategic plan.  They have made it clear that they believe the proliferation of criminal background checks has had a negative impact ex-offenders.

Yet very little thought to how the victims of the ex-offenders were impacted.

Several states have enacted laws to restrict the reporting of criminal records with many other states exploring similar restrictions.  This has been dubbed “second chance” laws.

Really?  Second chance?  If so, I am all for that.  Someone makes a mistake, pays their debt, learns from their mistake and moves forward.  I would participate in that graduation ceremony.

However, my 20+ years of experience with the criminal justice system has lead me to believe the law should be more accurately described as the tenth time law.  We have tried everything to lower recidivism rates:

  • Education
  • Tougher sentencing
  • Drug courts
  • Anger management

And as we continue to see the same percentage of offenders return to prison as we did 20 years ago (before the proliferation of background checks) then the only thing left is employment.

It is the lack of gainful employment that caused someone to steal a bike from the side of our home 2 weeks ago.

It is a lack of gainful employment that drives a person to physically abuse their partner.

It is a lack of gainful employment that leads someone to sexually abuse a 10 year old child.

Or is it personal choice and responsibility?

Should a bad decision 20 years ago such as a DUI, public intoxication, simple possession impact your employment today?  Probably not.  The recent case of a bank employee in Iowa being fired after a background check revealed a conviction 49 years ago for putting fake coins in a laundry machine is absurd.  Actually it is stupid.

However, we need to understand how broad-brush restrictions such as the recent law in Indiana WILL impact our organizations.  Yes, it may help this victim of an ignorant bank.  But it will also open the door for career criminals to hide their past so that you do not receive the full picture during the pre-employment process.

So on this anniversary of 9-11-2001, it is critical that we understand the shifting tides with employment background checks and how that could impact our organizations.  Let your voices be heard.

Join us for a webinar on the new Indiana laws restricting criminal history checks.  Register today.

Employee Background Check Lawsuit Settled for $2 Million

employee background checkBaldor Electric Co. has agreed to settle a U.S. Department of Labor Office of Federal Contract Compliance Programs discrimination claim based on their employee background check policy for $2 million.   Baldor holds more than $18 million in federal contracts and is owned by ABB Ltd. In Zurich, Switzerland. The Labor Department investigation determined that Baldor’s background screening process had a disparate impact on women and minorities.  The result was 795 qualified women and minorities did not have an opportunity to advance to the interview stage of the hiring process.

Does this sound familiar?

It should if you have been following the EEOC over the past 12 months.  The new EEOC Guidelines issued this spring has placed criminal record checks in the center of their radar.

Now the DOL has taken the same position as the EEOC believing that the proliferation of criminal background checks is adversely affecting ex-offenders.  This is a tough new environment for employers who are trying to balance claims of negligent hiring and retention and workplace violence while at the same time having background screening policies that do not have a disparate impact on minorities.

The DOL investigation claimed that those candidates that were affected did not receive an interview because of their criminal history.  This is important to note.

Why?  Because the EEOC has made it clear that candidates with a criminal record should have an opportunity to explain the circumstances of their conviction.  This lines up with “Ban-the-Box” legislation that has been sprung up across the U.S. whereby employers in certain jurisdictions are banned from asking about criminal histories on the application.

So what are the employee background check lessons for us?

  1. Criminal background check policies should not be zero tolerance policies;
  2. Screening policies should consider:
    1. What is the nature of the criminal record?
    2. How long ago was the crime committed?
    3. How does the criminal record impact the position?
    4. Candidates should be given an opportunity to explain their criminal history.

There is a lot of activity across the U.S. impacting employee background checks so do not hesitate to contact us if you have questions.

Sexual Assault Leads to Employment Background Checks Lawsuit

employment background checksOver the past couple months the background screening industry has been buzzing about the new EEOC Strategic Plan which has placed employers on alert that they better have sound policies on the use of criminal records to deny employment.   The intent is that employers use of criminal background checks is disenfranchising too many people and there should be limits on the use of criminal records. I have said for more than a year that this debate has been very one-sided.  The only voices we hear are from those who work with ex-offenders or researchers tucked away in ivory towers working with numbers, not people.

Do I believe that employers have an obligation to be good stewards in the use of criminal record checks?  Absolutely.  We have always provided training and consulting to our partners on the proper use of employment background checks.

This should be a balanced debate.  People’s lives are at stake.

A recent  lawsuit filed in U.S. District Court in Roanoke, VA illustrates how critically important it is to not abandon the use of criminal background checks.  A female employee of Cosmetic Essence was walking to her car after working a late shift and was attacked by a co-worker,  a convicted sex offender.  Nathan Seymore Martin was charged AND convicted of sexual penetration with an animate object.

The victim is suing for $6.3 million.  She claims that Cosmetic Essence is culpable because her attacker was a convicted sex offender and had they conducted employment background checks they would have known this.

But they didn’t.

Really?

We have to understand that this is not about money.  I have never met the victim, but having worked with thousands of victims and victims of crime organizations, I can guarantee you that the victim would give any money she receives to be able to turn back the clock and avoid being brutally raped. No amount of money will wipe away the violence.

The current movement in this country is to quiet the voice of victims.  To dehumanize the process.  Make it all about statistics instead of moms, dads, sisters and brothers.

And how will this impact Martin?  He is already a convicted sex offender so he is on the sex offender registry.  Yes, he will serve a little time.  Probably very little as his sentence was 3 years.  Which means he will be out of prison in about 1 year.  No joke.  Most states allow inmates to earn “good time” which often equates to 2 days of good time for each day served.

So in 12-18 months Martin will step out of prison into an employment world that wants to identify him as a protected class.

But the victim receives a life sentence.  She will be spend a lifetime coming to grips with being brutally and violently raped.  She will navigate a new world where her sense of safety and security has been destroyed.  Her thoughts and choices will be driven by her emotional scars.

And what drives me crazy is it was preventable.  A background check would have stopped this.

Does that mean Martin would have never harmed anyone else?  No, I am not saying that.

I am saying he would not have harmed this victim at work.  What we should do with violent sex offenders is a different article.

So the challenge for employers is to provide a safe work environment while at the same time not discriminating against a candidate.

Join us for a FREE webinar:   EEOC Strategic Plan and Legally Defensible Criminal Background Checks on June 8, 2012 at 2PM EST.

How to Select an Employment Background Screening Firm

employment background screening firmFinding an employment background screening firm is as easy as performing an internet search, but finding a professional employment background screening firm that ensures accuracy and thoroughness of data is more difficult. Since the background screening industry is largely unregulated, organizations must perform a little investigation on their own to find a screening firm that matches their company’s needs. An organization that hires a screening firm based on price or turnaround time is setting itself up for the very risks that background screening is designed to avoid.

Best Practices

An employment background screening firm is not required to implement or follow any one set of best practices, but a firm should always be able to provide an outline of their own best practices. Contrary to popular impressions, there is no one nationwide criminal database that is comprehensive and accurate. The $10 background checks so prevalent in the industry are usually only a cursory check into one national database that is neither thorough nor accurate. A professional background screening firm should be able to provide:

  • Searches reaching back further than 7 years, especially if suspicious information is found
  • Searches on multiple names and aliases
  • Searches at the national, federal, and local levels based on address and employment history
  • Knowledge of process in all fifty U.S. states and relevant jurisdictions
  • Personal as well as criminal history
  • Felony and misdemeanor reporting

Firms Should Partner with an Organization

Background screening firms with low quality standards are also likely to leave an organization foundering when support is needed. A professional screening firm should guide an organization through the process, explain their practices, and help organizations understand the requirements of the Fair Credit Reporting Act (FCRA). Screening firms should also provide guidance on what to do if adverse action or a second investigation appears necessary. Most importantly, they should be able to understand an organization’s needs and situation, as every organization is unique.

Claims that a screening can be completed in twenty-four hours or at fantastically low prices may be a sign that a firm is providing inaccurate or incomplete data, setting an organization up for risk if a potential employee does have a criminal record not captured by a cursory screening. Organizations must choose their background screening firms based on their commitment to accuracy and thoroughness to mitigate their risk in the hiring process.

Warning: A Case Study on Background Checks on Employees

background checks on employeesHow many of you have employees that have never had a criminal background check?  Or were only required to submit to a limited criminal history search? The idea of background checks on employees usually is met with a nod of the head which means you know it is a smart idea.  But it is also often followed with a statement about it not being the right time.   Which usually means you are not quite up for the battle.

It is true that some current employees will resist a policy change that requires ongoing background checks.  Nobody likes change.  Especially a change that allows our employer to dig into our backgrounds.

However, let’s be realistic.  It is not wise to have an organization comprised of employees who have never had a background check or only a cursory screening.   Even a quality criminal record check is a historical document the moment after it is completed.  The applicant or employee could commit a crime 5 minutes later and it will not be in the report.

So yes, there may be some grumbling from employees.  All of us would agree that criminal background screening is an issue of privacy.  We get that.  We also understand that it is a necessary and legally prudent intrusion to insure a safe workplace.

This is called balance.   Applicants or employees do not have to authorize that background check.  It’s a personal choice.  An employer cannot conduct a background check without authorization.  However, the employer also does not have to hire you or continue to employ you if you refuse to submit to a background check.

The federal courts in ATM Corp. of America vs. Unemployment Board of Review upheld the termination of an employee who refused to sign an authorization for a background check.  The unemployment board further held that she was not entitled to unemployment compensation.

We have just completed a case study on a client who implemented a new policy requiring background checks on employees in September 2011.  Here is a snapshot of what we found after screening their 578 employees:

  • 42.1% hit ratio (average is 10-12%)
  • 250 felonies
  • 489 misdemeanors
  • 22 employees (including a senior manager) terminated for falsifying application (indicated they did not have a criminal record when they were hired).

This is a small case study but confirms the importance of making your background screening program an ongoing process.  Background checks are not a one-and-done process.  A lot can change over the course of 15 or 20 year career.

So how do you get started?

  • It requires a policy change based on a business necessity.
  • You must define the frequency.  Will you require a re-check every 5 years?
  • You must define how it will be implemented.  All employees?  Or begin with the most senior employees and screen a certain number per month to create an ongoing matrix.

We can providence assistance and guidance in implementing an ongoing screening program.  We have created technology to make this process simple:

  • ATS Link.  We create a link that can be placed on your website and employees (volunteers and candidates can also use) can click on link, sign an e-authorization and initiate the background check.
  • Screening Alert.  You tell us your frequency (2 yrs, 5 yrs, etc) and we place that in your account.  The system sends you a report 30 days in advance of any background checks that are up for renewal.

We also have a 30 minute recorded webinar on How Long Are Background Checks Good For.

Are you ready to take your screening program to the next level?  Contact us today.

7 Keys to Understanding Employee Background Checks & the FCRA

employee background checksThe federal Fair Credit Reporting Act is a terribly confusing law that can have serious legal implications for non-compliance.    A recent lawsuit (Hunter, et al v. First Transit Inc.) illustrates how serious FCRA non-compliance can be. First Transit, or First Student bus transportation as many of you may be familiar, recently settled a class action lawsuit for $5.9 million for willful non-compliance of the FCRA by not obtaining authorizations before performing criminal background checks and also for firing or not hiring applicants because of a criminal background check and failing tp provide the required FCRA notices.

Compliance with the FCRA has produced a growing number of lawsuits in recent years so I thought it was important to take a few minutes and look at the 7 keys to understanding employee background checks and the FCRA:

1.       When Does the FCRA Apply?  The simple answer is if you use a 3rd party background screening firm for employee background checks then the FCRA applies.  FCRA compliance is not required of volunteers.

2.       Step One:  All Applicants.  All applicants for employment MUST receive a Disclosure Statement. 

3.       Step Two:  All Applicants:  All applicants for employment MUST provide a written or electronic authorization for the background check.  The disclosure statement and authorization can be one document.

The final two steps only apply if you are taking adverse action that is based “in whole” or “part” on the background screening report.  What does that mean? 

Well, an example of “in whole” would be a report contains a criminal record for rape.  The criminal record is the basis for the adverse action. 

An example of “in part” would be a report contains a criminal conviction for underage drinking.  You determine the record itself does not exclude the applicant.  However, on the application they indicated they did NOT have any criminal convictions.  So the adverse action is based on the dishonestly.  However, this is partly based on the report because you would not know about the dishonestly without the background screening report.  Make sense? 

So what does the FCRA require of adverse action?  It mandates a 2 step process:

4.       Pre-Adverse Action.  The first step in the process is a Pre-Adverse Action Letter which includes a copy of the background screening report and a Summary of Rights Under the FCRA.  Basically an applicant has a right to see what is going to be used against them and has the right to challenge the report if they feel the information is incorrect. 

5.       Adverse Action.  After waiting a “reasonable amount of time” which has been interpreted as 5 business days you are required to issue an Adverse Action Letter which denies the position.  There is no requirement to hold the position during the waiting period.

2 final keys to understanding the FCRA:

6.       Disputes.  A background screening firm is required to re-investigate if an applicant initiates a legitimate challenge to the background screening report.  These challenges are handled by the screening firm and if there was an error then a corrected report is issued after the re-investigation.

7.       Limit on Non-Convictions.  The FCRA limits the reporting of non-convictions (arrests, pre-trial diversions, etc.) to 7 years UNLESS the salary of the positions is $75K or greater.

The key takeaway is non-compliance of the FCRA can result in serious legal consequences.  

Safe Hiring Solutions is committed to helping you comply with the FCRA.  We provide sample forms and guidance.  You can view a recent recorded webinar:  Understanding the FCRA.

Do you have any questions about the FCRA?  You are not alone if you do.  This law is quirky and confusing.