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Criminal Backgorund Check

Background screens protect employers and company assets

Guest post by Vaughn Harvey and Najla Slowe

Hiring the right employee is crucial to business success, and analyzing potential job candidates is important because what you don’t know about them can cost you.

According to Automatic Data Process Inc., a national payroll processing firm, 30 percent of all business failures are due to employee theft and related forms of dishonesty, and 51 percent of all resumes, applications, and references provided by applicants contain inaccurate information.

They also found that nearly 7 percent of applicants have had a criminal record within the last seven years.

As an employer, it’s your responsibility to conduct due diligence searches in an effort to keep criminals, terrorists, and imposters out of your workplace. Employers are liable for the acts of their employees while they are on the job. The background screening is a simple solution to the challenge of good hiring practices and avoiding negligent hiring.

Costly Risks

First, let’s talk about the risk of negligent hiring and the potential cost associated with it. All employers carry around an imperceptible burden when they hire an employee. The legal term for this is due diligence, the flip side of negligence. Employers are expected to exercise reasonable care for the safety of others (i.e., its workforce).

When an employer fails to exercise due diligence and a person is harmed by an employee while on the job, that employer can be sued. The name of this legal action is negligent hiring, sometimes referred to as the negligent hiring doctrine.

If employers hire someone whom they either knew or should have known “in the exercise of reasonable care” was dangerous, unfit, and/or not qualified for the position and some sort of injury happens to someone as a result of this negligence, the employer can be sued for negligent hiring.

HR managers and business owners: It’s also important to know that your employees can sue you personally for negligent retention when you fail to terminate, discipline, or properly supervise another employee after learning that the person is dangerous or unfit.

Revealing Red Flags

Conducting background screenings helps to protect the company’s assets and filters out employees who may become a liability. Depending on your type of business and the position you’re hiring for, you may want to conduct a general background check or a more in-depth one.

The most common employee screening background check covers reference check, education verification, county criminal
records, and nationwide crime search. Other background checks include: credit reports, Social Security trace (often referred to as the address history search), motor vehicle records, military service verification, civil court records, and a host of other searches.

Note that in most cases, national or statewide criminal record searches may not pull the most up-to-date information about
a candidate’s criminal history. The most effective way to discover if a candidate has a criminal history is to first conduct a Social Security trace, which will pull up all the candidate’s alias names and former addresses.

Then, conduct a nationwide crime search and county criminal record search for every county they ever lived in. Verify with your background screening agency that they follow this effective procedure to ensure you get accurate results, and make sure they comply with the Federal Credit Reporting Act (FCRA).

To be legally binding, employers must have an applicant’s authorization prior to conducting a background check. Most background screening agencies, also known as consumer reporting agencies (CRAs), can provide your company with
forms that the applicant signs and dates.

This signed form gives you the proper authorization to conduct a background search. If you are a company conducting
a search on your own, or give your own background screening authorization, check with legal counsel to ensure you are
in compliance with state laws.

Background screenings need to be adjudicated by a proofing agent on the background screener side. This means the results of the background screening must be verified by a person to ensure the results are accurate and erroneous information is
removed. Make sure that when you use a third-party background screening agency, they adjudicate their data before releasing the results back to your company.

If the screening reveals red flags or information that your company decides disqualifies a candidate from employment, we advise that you send the candidate a pre-adverse action notice. This notice contains the contact information of the background screening agency as well as a copy of the FRCA Summary of Rights. These documents protect your company from a disgruntled candidate who may want to question the validity of the results. The agency conducting the background screening should be able to provide these documents; however, only the employer can disqualify the candidate based on the results.

Tips to Remember

Finally, there are three basics tips to remember when working with a third-party
background screening company:

  • The employer is required to sign and complete a certification form with the screening company. Certification means the employer understands and will use the information provided according to the law governed by the FCRA.
  • It is critical for the employer to use forms compliant under federal and state laws. The screening company may have a standard form; however, it’s ultimately the employer’s responsibility to ensure compliance with the state.
  • The release form serves multiple purposes; First, it releases information to the screening company. Second, it’s where the job applicant provides the necessary identifying information to the screening company to obtain public records. Third, it may be used when a former employer makes a request for proof of release before information is given.

VAUGHN HARVEY IS PRESIDENT AND SENIOR COMPLIANCE OFFICER,
AND NAJLA SLOWE IS IN MARKETING AND NEW BUSINESS DEVELOPMENT.

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