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| Faq ... Employment Screening: Please click on each subject for more information - 1. Aren't All "Background Check" Companies Essentially The Same? 2. Should Screening Be Conducted Corporate-wide Or On A Site-by-Site Basis? 4. Which Services Have The Highest Priority Within A Screening Program? 5. Does Employment Screening Infringe Upon The Applicant's Right To Privacy? 6. May Employers Require An Applicant’s DOB & SSN Information? 7. Must The Employer Advise The Applicant Of Search Results? 8. Are Nationwide Criminal Record Searches Available? 9. What Is The Recommended Process For Searching Criminal Records? 10. What Is The Difference Between Pre-Hire & Post-Offer Screening 11. Which Types of Criminal Convictions Represent Liability Exposure? 12. Doesn't Denial Of Employment Create Economic Hardship For Convicted Felons? 13. Is Retro-Active Screening Legal For Current Employees? 14. Do You Have Any Statistical Information Regarding Fraudulent Representations? 15. What Liability Exists For Inaccurate or Incomplete Search Information? 16. What Legal Cases Address Negligent Hiring Liability?
1. Aren't All "Background Check" Companies Essentially The Same? Not from our perspective. A number of security, research and employment agencies have entered the growing field of information services. The problem with such a variety of vendors is that, often times, the service provider can create more liability than it limits. A qualified provider understands what types of information are permissible by law, the circumstances under which information is available for use in the hiring process, and the legal ramifications resulting from the improper use of screening information. PROTEC Systems specializes in providing affordable, legally-defensible screening services for health care organizations, educational institutions, child care facilities & transportation companies.
PROTEC Systems recommends a corporate-wide employment screening program in order to preserve the benefits and defenses derived from the screening process. Implementation on a divisional or site basis would generate several legal concerns. 1) Inconsistent application of the selection criteria would be subject to challenge under Title VII of the Civil Rights Act (Amend. 1991) by protected class members claiming adverse-impact discrimination. 2) Increased liability exposure for Negligent Hiring/Workplace Violence claims would result in divisions or sites excluded from the employment screening program, specifically where the company had notice of its duty to make "reasonable efforts" in adequately screening candidates, as evidenced by screening programs at other facilities. 3) Existing selection criteria defined as "job-related" qualifications would be difficult to defend if employees in the same company and same type of position were subject to different hiring standards. The above considerations do not require an "all or nothing" approach to employment screening. Screening applicants based on the "class or category" allows equal treatment of all applicants, without expending resources on low-risk positions. Where same-class employees are selected in a non-discriminatory manner and subject to the same selection criteria, the hiring process remains valid.
Not with PROTEC Systems. We provide services on an "ala Carte" basis, allowing our clients to develop specific screening profiles by "class or category of employee". Our method, unlike packaged services, allows the client to dictate where resources are expended for maximum benefit. Our company also provides assistance in the development of EEOC – compliant guidelines for use in the hiring process. See enclosed information for pricing and turnaround times.
4. Which Services Have The Highest Priority Within A Screening Program? When ranking screening services, the primary consideration is how well each service fulfills the goals of employment screening. A service that improves selection, reduces liability and enhances client/co-worker relations ranks higher than a service that identifies qualified employees and partially limits liability. The first three services listed below are considered primary searches due to litigation. ¨ Criminal History Checks represent one of the most important tools of a comprehensive screening program because of its potential to provide each of the benefits outlined above. Criminal history checks identify job-related incidents of violence, dishonesty, drug abuse and supports the "reasonable effort" standard necessary to reduce Negligent Hiring liability exposure. In addition, this service integrates well into an existing HR program because compliance requirements are relatively easy to administer. ¨ Motor Vehicle Records are highly beneficial as a low-cost source to identify negligent driving and alcohol-related infractions. This service should be utilized where driving is a job-related requirement. Several "Negligent Hiring" suits have been lost due to the employer's failure to inquire into the applicant's past driving history. ¨ Previous Employment Confirmations offer a unique opportunity to confirm applicant skills and qualifications acquired during previous employment as well as supplement the "reasonable effort" standard to reduce liability exposure. PROTEC Systems has developed a series of inquiries that, answered or not, provide information and reduce liability. Employment confirmations also identify a casual attitude toward honesty by applicants who misrepresent, omit or falsify application information. ¨ Social Security Number Verifications allow employers to cross-reference a SSN to a name, address & date of birth and is an important first step toward confirming the applicant's identity and reducing ineffectual searches due to erroneous or fictitious entries. ¨ Academic/Education Verifications allows post-secondary education to be verified where a degree or certificate is a job-related requirement. Academic verification identifies integrity issues in applicants that falsify, misrepresent or omit information regarding educational achievements. ¨ Professional License Verification provides a confirmation of skills requiring expertise in a given field should be confirmed to identify qualified applicants. Licensing requirements represent the industry standard required to perform selected tasks. Verifying that the skill level has been met should be a standard business practice. Although liability issues exist, the greater risk comes from the harm caused by the unqualified employee. ¨ Employment Credit Reports provide useful financial history information such as collections, liens, judgments and bankruptcies on applicants responsible for cash, negotiable instruments and/or high value assets. Equally important, the credit history aids the search process by verifying date of birth and identifying former residences and prior employers. This information is highly beneficial given the mobility of today's workforce. ** Although compliance with the Fair Credit Reporting Act is required, most organizations have a job-related basis for requesting this information from applicants involved in credit, insurance and securities transactions. The service and administrative costs are outweighed by the benefits of additional applicant information and the risk exposure inherent in fiduciary transactions. *NOTE - The Fair Credit Reporting Act § 615 requires: 1) Use of credit information in the employment hiring process requires a written policy which identifies unacceptable criteria. 2) If the employment process is discontinued due to information, in whole or in part, contained within the consumer report, the applicant must be notified of the Reporting Agency's name, address and phone number in order to receive a copy of the report. PROTEC Systems will forward this information to the applicant at your request. ¨ Civil Record Searches provide a history of claims that may identify malpractice, due diligence or extensive litigation concerns. This information is only recommended where a specific job-related consideration exists. ¨ Personal Reference Checks solicit job-related information regarding the applicant’s background and personal characteristics and demonstrate "due diligence" in the selection process. ¨ Worker Compensation Records provide information regarding the potential limitations of an applicant as well as protect employer rights to second-injury funding. **NOTE** Compliance with the Americans w/ Disabilities Act of 1990 (ADA) is required for employers with 15 or more employees, effective 07/26/94.
5. Does Employment Screening Infringe Upon The Applicant's Right To Privacy? Where the applicant has fully and knowingly consented to the review of identified public record information as a condition of employment, the constitutional right to privacy has been waived. The primary consideration is whether the applicant has fully and knowingly consented to the search process. PROTEC Systems provides a detailed waiver of the privacy claim within our "Release/Authorization" form. Employers can defend this requirement as a balance between the applicant's right to privacy and the employers duty to maintain a safe workplace.
6. May Employers Require An Applicant’s DOB & SSN Information? Employers have a lawful right to require the applicant to provide specific identifier information, provided the employer can demonstrate a "legitimate business purpose". Social Security Numbers are required by both federal & state agencies and thereby meet the "legitimate business purpose" criteria. Date of birth information has largely been excluded from employment applications with the intent of avoiding age discrimination claims. A legitimate business purpose exists for requiring DOB information to satisfy the employer’s need to exercise "reasonable effort" when screening potential employees. Date of birth information is necessary to ensure that the criminal record of a similar named individual is not attributed to a innocent party, as well as supplemental confirmation that an offender’s record is attributed correctly based on name, date of birth and social security identifiers. In addition to reducing the undesirable impact of erroneous screening results, employers and applicants benefit from a safer work environment. *Note- Screening report results should be maintained separately from general personnel files to preserve applicant confidentiality.
7. Must The Employer Advise The Applicant Of Search Results? Under the Fair Credit Reporting Act § 615(a), the User/Employer must notify applicants where employment is denied because of adverse information contained in the consumer report and notify the applicant of the name and address of the agency generating the report. The purpose is to provide applicants with the opportunity to contest inaccurate, incomplete or incorrect information. The employer's benefit is that an administrative process can often diffuse potential litigation. In essence, the F.C.R.A. allows employers to rely on public record information whether the information is accurate or not, provided that the applicant retains a right to dispute inaccurate information.
8. Are Nationwide Criminal Record Searches Available? Nationwide criminal record searches are only available to private employers through the F.B.I.'s National Crime Information Center (NCIC) where mandated by federal or state statute. Absence of the legislative requirement eliminates this source from commercial use. Although we are aware of organizations offering this service, the F.B.I. advises that N.C.I.C. access for non-criminal justice agencies is prohibited by federal law and carries substantial criminal & civil penalties for unauthorized use.
9. What Is The Recommended Process For Searching Criminal Records? Thirty-two states currently offer statewide access and all fifty states offer county-by-county criminal record searches. Arguments can be made, pro & con, for the exclusive use of either type. Client preference usually dictates the search method based on factors such as cost, response time & liability exposure. Generally, statewide and county searches or county only searches will provide the "due diligence" standard necessary to reduce liability exposure. Cost and response issues are determined largely by organizational need.
10. What Is The Difference Between Pre-Hire & Post-Offer Screening Whenever possible, PROTEC Systems recommends pre-hire screening to allow the employer to determine if the applicant is qualified before the employment relationship is formed. Post-offer screening creates an additional burden on the employer when rescinding an offer of employment.
11. Which Types of Criminal Convictions Represent Liability Exposure? Criminal convictions are divided into one of eight categories, depending on the severity of the offense. The following represents the types of offenses from most serious to least seriousness: 1) Felony - 1st Degree 5) Misdemeanor - 1st Class 2) Felony - 2nd Degree 6) Misdemeanor - 2nd Class 3) Felony - 3rd Degree 7) Misdemeanor - 3rd Class 4) Felony - 4th Degree 8) Misdemeanor - 4th Class Generally speaking, PROTEC Systems recommends consideration of all job-related felony and serious misdemeanor conviction information. After identifying a conviction, we encourage an inquiry of whether the applicant falsified the application inquiry regarding criminal convictions. If so, legitimate job-related issues of honesty and integrity are raised. The question of time between conviction and employment depends on multiple considerations of history, frequency, severity and the ever present "job-related" nature of the offense. Single instances of minor misdemeanors may have no impact on the hiring decision while a single felony conviction for violence could affect employment for 7 years.
12. Doesn't Denial Of Employment Create Economic Hardship For Convicted Felons? Yes, however, employers also have a legal duty to co-workers and third parties to provide a safe and secure workplace. A person denied employment on the basis of a job-related conviction is simply unqualified for the position. The denial is not one of all employment, only the position for which the applicant applied. If the applicant was convicted of a serious, job-related crime, denial of employment is a consequence resulting from the applicant's actions. A conviction for an alcohol-related offense does not limit employment as a dock worker but the same conviction has greater implications for a school bus driver. The employer has an obligation to provide a safe workplace and failure to do so creates a significant degree of liability.
13. Is Retro-Active Screening Legal For Current Employees? Employers may require retroactive screening on all current employees if the employment relationship is at-will. Where at-will employment exists, the employer has a right to terminate applicants with or without cause, with or without notice. A requirement that all employees be screened as a condition of continued employment is legally valid and shows "due diligence" in protecting employees, clients and third persons from the harmful acts of dangerous or unqualified employees. An at-will employee can be required to sign a consent form for the fact that the employee has no right to employment and could be terminated for any reason, including failure to sign a release/authorization form. In the interest of employee relations, we recommend that current employees be advised that social and legal considerations require the company to take additional steps to protect both employees and the company. The policy to conduct employee screening will be applied in a nondiscriminatory manner to all current and future employees.
14. Do You Have Any Statistical Information Regarding Fraudulent Representations? PROTEC Systems does not provide industry statistics regarding fraudulent or misleading applicant information. The reason for this is simply that statistical information regarding resume/application fraud is a) largely compiled by organizations motivated by economic self-interest, b) unduly vague in terms of demographic, social, and economic factors, and c) lacking predictive value in even the broadest of applications. We do know that applicants misrepresent skills, qualifications and abilities. What we do not know, and what statistics do not tell us, is the level of misrepresentation within any given organization. The key to employment screening is knowledge, not percentages. The benefit of improved employee selection is derived from the process of confirming and verifying applicant qualifications. Employers benefit from the knowledge that each employee possesses the qualifications to effectively perform the requirements of the job.
15. What Liability Exists For Inaccurate or Incomplete Search Information? The Fair Credit Reporting Act of 1968 (Amend. 1997) is the primary legislation providing remedies for inaccurate screening of Consumer Investigative Report information. The first line of defense lies in distinguishing between the source of the inaccurate information. As long as the inaccurate or incomplete search information is a matter of public record, under the F.R.C.A. § 613(2), no liability attaches "if the current public record status of the item at the time of the report is reported." A benefit of screening with public record or objective information is that we are allowed to rely on the contents of public records without liability, provided a system exists which allows the applicant an opportunity to examine and contest inaccurate search results. Our second line of defense, therefor, rests in educating our clients in the proper treatment of adverse applicant information. A third defense to liability is to prevent inaccurate searches through quality control procedures, which confirm known adverse information results and auditing sources to identify the existence of known adverse information. Finally, our company maintains sufficient liability insurance with One Million Dollars in Errors & Omissions coverage.
16. What Legal Cases Address Negligent Hiring Liability? Our research identified several noteworthy cases that illustrate the application of negligent hiring principals and the liability issues affecting a broad range of industries. a) Parents awarded $ 1 Million after a fatal assault on their children by employee with previous convictions for violence. McKishnie v. Rainbow Int'l, Fla. Cir. Ct., (No. 91-3617 CA Div. J 1994). b) $500,000 Jury Award Against Employer Who Failed To Check Driving Records of Unsafe Driver. North Houston Pole Line Corp. v. McAllister, 667 S.W.2d 829 (Tex. Ct. App. 1983). c) Security Company Pays Judgment of $300,000 to Client Robbed by Company's Employee. Welsh Mfg. v. Pinkerton's Inc., 474 A.2d 436 (R.I. 1984). d) $1.25 Million Settlement Against Health Care Provider That Hired Abusive Nursing Aide Without Checking Criminal History. Rodebush v. Oklahoma Nursing Homes, Ltd.,Unpublished (Okl. Dt. Ct. 1993).
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Criminal Histories: 13-15% applicants have a criminal history. In the Medical field the rate increases to over 35%. The above statistics are from applicants submitted to Protec Systems. |
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Resumes: 40-53% or applicants either falsify or exaggerate on their applications. Click here for more information. |
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Stealing: 33% of employees admit to stealing. It is estimated that 30% of business failures are due to employee theft. |
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Hiring Suits: There is a growing negligent hiring climate combined with a growing population of unqualified applicants. HR is faced with a balancing act of EEOC and FCRA compliance issues. Clck Here for more information. |
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