Criminal Background Checks: 3 Ways Employers Can Go Wrong

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In April of 2012, the Equal Employment Opportunity Commission (EEOC) provided employers with updated guidance on the proper legal use of criminal background checks.  Background checks are continually targeted for increased scrutiny by regulatory bodies.  Have you ever wondered why?

Background checks are powerful tools of hiring knowledge.  They can efficiently guide hiring and retention because of the wealth of information readily available.  They are the most cost effective method of protecting your workforce and workspace.  Employers can get this information quickly and easily.

This power for good in the modern human resources field is the very reason that the practice of pre-employment screening has been under the legal microscope.  A tool this powerfully good can be just as powerfully bad.  This article will focus on three common mistakes that employers make in their pre-employment screening practices that can turn the whole process sour.  Each of these oversights can lead to catastrophe!

1.     Neglecting to Use “Best Available Means” – The quickest way to fail at screening applicants is to not screen applicants.  Many employers see the volumes of regulation and throw the proverbial baby out with the bathwater.  Criminal, civil, and credit screens are the best available means to discover applicants who might harm the company or its clients.  Failing in this discovery opens a Pandora’s Box of negligent hiring, negligent retention, and the myriad of problems that flow from hiring an employee predisposed to violence, recklessness, and theft.  Conducting these screens is a necessity in a modern workplace, and represents an investment in a culture of professionalism and security for your people.  With the widespread use of these tools and their simplicity and cost-effectiveness, criminal background checks are the “best available means” to avoid negligent hiring.  Hire without screening at your own peril!

2.     DIY (Doing it Yourself) – Doing the right thing in the wrong way is still a mistake.  With the best of intentions, employers might decide to join the trend of do-it-yourselfers out there.  The problem is that pre-employment screening is not sodding your yard or replacing your kitchen’s backsplash.  The federal government and each State regulate the use of criminal, civil, and, credit history.  The National Labor Relations Board is heavily involved in examining employer use of employee historical data, especially from social media sources. There are so hundreds of sources of information: national databases, local courthouses, internet websites, offender registries, credit bureaus, and social media, to name a few.

Without a guide in this information jungle, the employer-explorer can quickly find themselves on the wrong side of the wet rim of a boiling pot of regulatory stew.  Those internet sources are the perfect example.  Going to the web might find yield information to inform your hire, but in the process you’ve viewed protected class information under Title VII that has nothing to do with an informed hire and can never be “un-seen”.  Get a professional and reputable background screening firm to set up your screens and guide your policy creation.  Ask for references!  It’s worth the investment to do it right.

3.     Failing the “Job Relation and Business Necessity” Test – Even with a good decision to conduct applicant screening with a third-party firm, there is a final potential for disaster.  Not all screening companies are created equal.  Some are completely automated, with little support or analysis.  Others are just one private investigator who lacks an understanding of industry standards.  Either may sell you “cookie cutter” screening products that are not tailored to specific job duties.  If you do not document the job-related business necessity that justifies the screening, your background check could be ineffective and illicit.

Now you know how to maximize the power of the criminal background check for your applicant pool!  Use a comprehensive program of screening, employ a trusted third-party, and ensure that the screening tools and potential disqualifiers match the job duties and business necessity of the position in question.  For a better idea of what this kind of analysis could look like, check out the resource box below for a link to National Screening Bureau’s website!

dan

By night, Dan Oblinger is a mild-mannered Sergeant for a large metropolitan police force.  He is a trained and experienced police officer, crime intelligence analyst, mental health specialist, hostage negotiator, and drug influence recognition investigator.  By day, he is the Director of Training for National Screening Bureau, a private company devoted to matching employers to their perfect hiring pool through background checks, drug testing, and I9 compliance products.  He lives on a ranch with his wife, three adopted children, and 13 chickens.  He speaks with passion and humor about his experiences and expertise to audiences across the nation.  Check him out at http://speakersbureau.natsb.com

Criminal Background Screening: Beyond Criminal Records

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This article is the final third of a three part series that examines the role of background checks and reports in modern workplaces.

In the second article of this series, you read about the life cycle of a criminal conviction.  To review:

  • Criminal convictions come from criminal behavior.
  • Convictions are filtered through the criminal justice system.
  • Many convictions are pleas to lesser charges.
  • Convictions data is kept in courthouses all across the nation and in aggregated databases.

Criminal history is useful as a broad screening tool.  Applicants who show a propensity to hurt others or steal property can usually be disqualified for most jobs based upon business necessity.  If an employee assaults their colleagues or clients, or steals company property, the case for disqualification is relatively simple.  Now let’s shift our focus away from criminal courts and see what other sources of re-employment screening data exist.

CIVIL COURT RECORDS

When a person commits a crime that harms society, they could be convicted in criminal court.  When they violate another person’s rights, they can be held liable in civil court.  Civil court records can include Protection from Stalking or Abuse orders, restraining orders, garnishments, collection forfeitures, breach of contract, evictions, or other judgments.  It is appropriate for applicants for positions that provide access to financial documents, valuables, sensitive information, or petty cash.

WORKER’S COMPENSATION QUERY

It is possible to research a potential worker’s history of claims through State Departments of Labor.  There are additional legal restrictions on these kinds of queries.  The general rule is that this search is only done post-offer, and requires a special privacy waiver by the applicant. There may be additional restrictions in some locations, and some States prohibit this search altogether.

MOTOR VEHICLE REPORT

If your applicant will be driving a vehicle on company time or on the company dime, don’t you want to know if they have a valid license, history of DUIs, reckless driving, or evading and eluding police?  The Motor Vehicle Report, or MVR, should be used.  An MVR might be required by your insurance carrier.  In many instances they will provide this search as part of their comprehensive coverage.

EMPLOYMENT CREDIT CHECK

Need plus opportunity leads to risk.  If your applicant cannot manage their finances, it speaks to their character and ability to manage job duties.  If they are grossly in debt, have multiple collections, and have a history of defaulting or bankruptcy, they are a higher risk for embezzlement.  If their job duties give them access, check their credit.

FINANCIAL SANCTIONS CHECK

Banks, credit unions, and financial institutions should consider checking the myriad of databases maintained by regulatory agencies for the financial industry.  FINCEN, the FDIC, the SEC, the OIG, and many other governmental bodies maintain registries of companies and people who are banned from banking or have been sanctioned for noncompliance.  This is a simple and cost effective way to prevent big problems in a highly regulated trade.

EMPLOYMENT OR EDUCATIONAL VERIFICATION

Diploma mills and a culture of embellishment have led to a high rate of inaccuracy on resumes and job applications.  It is advisable to have a third-party conduct verifications with past educational institutions, employers, and credentialing boards.  If it important enough to ask about these qualifications, it is important enough to know that the information provided is correct.  To quote President Ronald Reagan, “Trust, but verify.”

ABUSE REGISTRY CHECK

Many States compile registries of individuals who have a history of abusing, neglecting, or endangering dependent adults or children.  If the job tasks require interaction with these populations, it is a no-brainer to disqualify anyone who has demonstrated this propensity.  An abuse registry check would be the order of the day!

SOCIAL MEDIA BACKGROUND CHECK

The legal phrase that motivates background checks to prevent negligent hiring is “best available means”.  Given the huge number of people on social media sites, a check of an applicant’s social media footprint is fast becoming the industry standard.  The wealth of information available through these methods greatly assists the hiring decision.  However, with such power comes great responsibility.  Social media has a greater risk for employers due to its transmission of protected class information.  The EEOC, Federal regulations under Title VII, and the National Labor Relations Board have a lot to say about properly utilizing social media for screening.  Have a policy, get it reviewed by legal counsel familiar with these federal regulations, and only use a professional third-party screening service to view these social media sites.  They are too good not to check, but it does no good to violate applicant’s rights or federal law in this process!

With all of these specialty searches plus the various criminal conviction data sources, building the proper screening system can be overwhelming.  Consult a professional screening service.  For more information about conducting an analysis of what screening searches are best for each job classification, and how to handle the disqualification process in compliance with the Fair Credit Reporting Act, check out our website at www.natsb.com!

dan

Dan Oblinger is the Training Director for the National Screening Bureau, a leading provider of pre-employment screening, drug-free workplace programs, and I9 compliance services.   He is a ten year veteran of a large metropolitan police department with assignments as a patrol officer, patrol supervisor, undercover detective, crime reduction specialist, drugged driving enforcement investigator, and hostage negotiator.  He has extensive training and experience in crime analysis, criminal identification and apprehension, drug influence, and corporate safety.

 

Criminal Background Checks: Criminal Conviction Data

imgres-1You’ve already learned in our last article about why it’s a good idea to use criminal records to screen applicants. Now let’s touch on details of how criminal convictions are made, and where we find the criminal conviction data.

Learning about what a conviction actually is and how it comes to be can help you get the most out of a detailed and thorough employee screening program.  Contrary to popular belief, a conviction doesn’t begin in the courtroom, or even in jail. Once the crime has been committed—whether in a home, at a park or at a local bar—the conviction process has began.

As mentioned in the first article, in any community there are people motivated to commit crimes. Convictions grow from these criminal offenses. Unfortunately, what most people don’t know is that a majority of crimes go unreported and unnoticed. The difference between reported crime and an actual crime rates is known by criminologists as the “dark figure” of crime.  Typically victims are weary to report crimes because they are ashamed, they have little faith in the legal system, or they simply do not realize they’ve been victimized.  The Bureau of Justice Statistics has estimated that 52% of violent crime went unreported from 1996 to 2010.  (http://www.bjs.gov/content/pub/pdf/vnrp0610.pdf)

Even after the crime has been reported, it remains far from a conviction. Some of the reported crimes will never be investigated.

Even after being reported, a crime is still far from a conviction. Some reported crimes will never reach investigation.  Many of the crimes that are investigated never result in an ID of the person responsible. Once a suspect has been ID’d, the police present the case to a prosecutor. In many instances, the prosecutor will decline to charge the case. There will never be a conviction under any of these circumstances.

Even after being charged and prosecuted, many cases are pled to a lesser offense. Once taken to trial, there is always a chance of an acquittal. This entire sequence means less than 10 convictions are handed down for every thousand criminal offenses. If your applicant has a conviction on their record, it means they have passed through all of these obstacles It’s important you don’t dismiss a conviction as something that’s “not that big of a deal” because it’s their only mistake. The reality of the matter is probably just the opposite. . In most cases, the conviction was actually a plea to a lesser charge.

Once a conviction is created, where does it go? The short answer to this question is a courthouse. Every courthouse holds conviction records at their respective jurisdictional level. If you’re looking for state court convictions you can search for these records online. Federal records are found at the federal court and city or municipal records are at the city court. Most courts don’t communicate their convictions with each other.

There are national databases that combine some criminal records and state maintained registries. These are excellent resources for background checks because they are fast and fairly inexpensive. Although they are useful, beware that these records are often incomplete.

The Updated Form I-9

The newly revised Form I-9 has finally arrived. This updated version of the Form I-9 was made available online through the USCIS website on March 8 and can now be accessed here. This version replaces the previous form employers are most familiar with, which will become invalid starting May 7, 2013. The new form is an improvement from the outdated version with a few key changes.

The new I-9 is equip with a more clear set of instructions for employers on how to complete the form, as well as a revised layout now expanding the document from five pages to nine.  USCIS strongly encourages employers to copy page 7-8 together as a double sided sheet to avoid separating the two papers. They’ve also included sections for employees to provide e-mail addresses and telephone numbers, although it is not mandatory.

It is still required that employers provide employees with a list of acceptable documents for identification as well as instructions to assist them in completing the forms.

The filing and storage procedures for the I-9 remain the same. Before making any changes to your hiring practice, review the new handbook (M-274)  which has been renamed to The name as “Guidance for Completing Form I-9.”

Lastly, when you’re starting the I-9 process, don’t t forget to verify there’s a revision date of March 8, 2013 at the bottom right hand corner. By May 7th, this will be the only acceptable form. Filling out the I-9 can be tricky. If you want to make sure you’re remaining compliant, or want to learn more about the I-9 changes visit NATSB here and we’ll make sure you’re taken care of.