Despite the wants and needs, as you put practices in place to get the right people on board, it’s easy to find yourself walking a fine line between managing risks and protecting the privacy and employment rights of your candidates and employees. Those who stay within the line gain valuable insight to drive better hiring decisions. Those who cross it find unwanted consequences.

In the quest to hire the right people, employers are faced with unprecedented challenges.

The EEOC and other regulators are carefully examining employers’ use of criminal records, credit reports, and other screening and hiring practices to reduce discrimination and protect the rights of candidates and employees. Add this renewed attention to the already existing legal obligations of employers and what on the surface seems like a simple task is quickly muddled with complexity.

Employment screening is not an optional exercise.

When it comes to hiring practices, background screening cannot be considered optional. That’s because employers have a duty of care to hire and retain people who are fit and qualified for their respective roles. An employment screening program demonstrates your commitment to this duty. There are simply too many cases where a company’s failure to adequately screen its employees has resulted in expensive claims of negligence and damage to people, brands, and profits that could have been minimized or avoided with the right screening approach.

Your background screening program will be put to the test.

While it shouldn’t be optional, running a background screening program isn’t always easy. As an employer, your screening program will be put to the tests of many stakeholders and must be prepared to answer the following types of questions:

• Does it promote fair hiring practices?
• Is the program integrated with existing onboarding processes? Is it easy to implement?
• Does the program deliver accurate and insightful data?
• Is it compliant with federal, state, and local laws?
• Does it support your corporate risk management goals?
• Does it deliver a measurable ROI?

Clearly, background screening is more than a ‘check the box’ activity. It is filled with nuances, legal issues, and other considerations that can overwhelm even the most prudent manager.

Introducing the Employment Screening Survival Kit

At Proforma Screening Solutions, we strive to help you hire and retain the right employees. As such, we’re proud to introduce our latest resource, the Employment Screening Survival Kit. This valuable resource is designed to help you discover:

• How to plan and budget your background screening program, including how screening fits into the recruitment process, how to assess your risks, how to map roles to screening activities, how to select a screening services provider, and much more.
• What you need to know when executing your employment screening program, including important considerations for FCRA and EEOC compliance, adverse action notifications, social media, and more.
• How to measure your success, including a useful worksheet to help you calculate the ROI of your program.

We are releasing the Kit in phases. Part 1: Planning and Budgeting Your Program is available now. In it you’ll find 14 pages of valuable information, including:

• The role of background screening in your recruitment process.
• How to integrate screening into your recruitment and onboarding processes.
• Training the people who will implement the program within your organization.
• Background screening as a risk management project.
• Building your budget.
• How to select the right background screening company.

For instant access to Part 1, click here.

Employment Screening Blog

The updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions has caused quite a stir among background screening companies and employers who rely on criminal background checks. Chicken Little would have nothing on some of these people!

Before this goes too far, let us try to boil down the 55 page guidance document into 3 words for you:

Little. Has. Changed

Don’t take us too literally but the truth is, very little has really changed.  The LAW hasn’t changed. The EEOC is not Congress; they can’t change the law. It’s the same as it’s been since 1991. Rather, their strategy is as it’s always been:  Sue and let others figure it out.  What the EEOC is doing is changing their strategy to discern whether or not they’ll sue you.  They are changing the lens through which they’ll look at your practices.

At issue, the big difference is the individual assessment section. The guidance details that when it comes to using criminal records in employment screening, an employer must individually consider:

• Facts or circumstances surrounding the offense or conduct
• Number of offenses for which the individual was convicted
• Age at the time of conviction, or release from prison
• Evidence that the individual performed the same type of work, post conviction, without any known incidents of criminal conduct
• Length and consistency of employment before and after offense
• rehabilitation efforts; and whether individual is bonded under a federal, state, or local bonding program

So, no – we’re not teetering on the brink of extinction but you could have a serious price to pay for sloppy employment practices.

If you’re doing a good job of documenting those things today you’re probably in pretty good shape. If not, well we’ve made our point.

Employment Screening Blog

Specifically, the EEOC is attempting to limit the disparate impact of employment criminal background checks. The premise is, since some groups including African-Americans and Hispanics have much higher incarceration rates, there is corollary disparate impact on these groups when criminal records are used in the hiring process. While the EEOC has long pursued policies to minimize or eliminate employment discrimination based on race, gender, or nationality, the Commission seeks to update those policies to reflect today’s social and economic situations.

If you’ve been following our blog you know that we’ve been talking about the issue of criminal records checks and the EEOC for some time.  Here are a few recent posts to reacquaint you with the issues:

• EEOC to Discuss Use of Criminal Records in Employment Screening
• EEOC Examines Arrest and Conviction Records as a Hiring Barrier
• EEOC Focus on Criminal Background Checks Underscores Importance of a Holistic Approach
• Use Employee Criminal Background Checks Wisely
• Does the Use of Criminal Records Actually Reduce Discriminatory Hiring?

Revisit this blog soon to read our post-meeting summary and reaction.

**UPDATE April 25, 2012 5:20pm EST**

Our friends  Pamela Devata and Frederick Smith at the law firm, Seyfarth Shaw LLP, just posted a brilliant update on the EEOC meeting and resulting Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.  Click here to read their post.

Employment Screening Blog

When things go wrong in the workplace – whether violence, theft, accidents, or worse – the conversation inevitably turns to what could have been done to prevent it and what more we should have known about the people involved. This is one reason why background checks are utilized by more than 90% of corporate America as a tool to make better and safer hiring decisions. Despite the clear value, background checks are also under fire by organizations and individuals who cite inaccurate criminal records as a culprit in keeping good people out of work.

The NationalConsumerLawCenter’s (NCLC) recently-released report, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses, addresses the specific issue of criminal records – one type of employee background check.  At issue are database records sold to employers that often contain inaccurate information as a result of one of the following:

• Mismatching the subject of the report with another person
• Revealing sealed or expunged information
• Omitting information about how the case was disposed or resolved
• Containing misleading information
• Mischaracterizing the seriousness of the offense reported

Seeing the right person out the door for the wrong reason is something we all want to avoid so it’s no wonder the issue of inaccurate criminal records is of concern.

The Lure of ‘Instant’ Criminal Background Reports

The problem of background check errors is exacerbated by the number of web-based data brokers that offer instant access to criminal records. While appealing from a time and cost standpoint, these data brokers offer nothing more than, well, database searches. And unfortunately, raw data by itself can be dangerous if in the hands of people who don’t fully understand the data or its limitations, know what how best to use it, or how to verify its accuracy and completeness.

The Impact on Job Applicants

The NCLC report indicates that 93 percent of employers conduct criminal background checks for some potential applicants and 73 percent of conduct checks for all potential applicants. As such, criminal background checks are likely to impact the employment outcomes for the estimated 65 million adults (nearly one in four) in theUnited States who have a criminal record.

The reality of these numbers cannot be taken lightly – and this reality isn’t lost on most professional screening companies.

The NCLC report cites incidents where unreliable data leads companies to unfairly deny employment to innocent individuals. And it goes into great detail about the types of remedies it suggests to prevent bad information from ruining people’s employment opportunities.

Doing criminal records checks is a separate issue from doing them RIGHT.

The NCLC report rightly points out that the proper use of criminal records by an employer is a separate issue from the accurate and complete reporting of criminal background checks by a consumer reporting agency (CRA). The NCLC urges the Consumer Financial Protection Bureau (CFPB), the Federal Trade Commission (FTC), the US Congress and state legislatures to initiate an industry-wide clean-up of background check companies that report erroneous criminal record information to employers.

We couldn’t agree more.

The value of criminal records and employment screening as a whole is that, when accurate and complete, they help employers make better, more well-informed employment decisions. There is no serious question about this fact.

The first place people look when something goes awry in the workplace is the background of the wrong-doer.  Thus, the accuracy and completeness of criminal background checks is paramount to the integrity of employment screening.  That’s why you’ll find a strong and committed group of background screening companies allied under the banner of an organization called Concerned CRAs.  Concerned CRAs have rallied around the issue of reporting criminal records the right way.

Here’s what Concerned CRAs has to say about database criminal records:

Often marketed as “national” or “nationwide”, criminal records databases are compiled by private companies who purchase information from a patchwork of sources: county courts, state criminal records repositories, sex offender registries, and prison systems.

Criminal records database searches are valuable because they cover a much larger geographical area than searching only the jurisdictions associated with an employment applicant’s residential history. People may get into legal trouble in jurisdictions where they don’t live.  Because there are more than 3,200 counties in the United States, not all courts can be effectively checked on-site.

While criminal records databases are useful in identifying potential criminal records they should not be relied upon as accurate or complete for several reasons…

Concerned CRAs has even initiated a self-certification program in which like-minded background screening companies can certify their practices as being in line with accepted protocol.

We do take issue with many of the findings in the NCLC report. In several instances, the report seems to glaringly ignore facts that support the well-established and  legitimate business need for employers to conduct background screening. The report paints a one-sided picture of utopian human capital risk where everyone can be rehabilitated and recidivism is non-existent. As risk management experts, we know better.

At the same time, we enthusiastically embrace our responsibility as a professional background screener to follow reasonable procedures to assure the maximum possible accuracy of the criminal record information we report.  Not only does this mitigate our and our clients’ risk, but of equal importance it is the right thing to do for the job applicants and employees we screen.

Read the entire NCLC report here.

Learn how to hire a quality background screening company.

Employment Screening Blog

If you knew or should have known of an employee’s propensities for potentially damaging behavior and that employee causes injury to another, you may be held vicariously liable.

In the case of C.A. v. William S. Hart Union High School District, the California Supreme Court reversed a lower court dismissal of a complaint against the California school district and held that, in fact, the public school district may be found vicariously liable for the acts of its employees, citing ample case authority to establish that school personnel owe students under their direct supervision a protective duty of ordinary care. Specifically, the Court ruled that negligence may be found in supervisory or administrative personnel who allegedly knew, or should have known, of an employee’s propensities and still hired, retained, and inadequately supervised them.

Key Takeaways for Employers:

1. Respondeat Superior? What?

Typically, employers look to the doctrine of respondeat superior, which makes an employer responsible for an employee’s negligence only when the actions occur within the scope of employment. In the School District case, the Court ruled that the actions of the guidance counselor occurred outside the scope of her employment. Still, the case is going forward with negligence being placed on the people who worked with and supervised the counselor so the lower court can determine whether they knew or should have known and therefore, could have protected the child from abuse.

2. Employment Screening Doesn’t Stop At Go.

A traditional hiring process is complete with checks and balances designed to ensure each employee is adequately screened, interviewed, and verified before being hired. All of this helps protect employers from cases of negligent hiring. Less attention is paid to the closely related case of negligent retention, which arises in situations where an employer continues to retain an individual who is no longer fit for the position. Once again it comes down to whether you knew or should have known… Employers must demonstrate duty of care in retaining employees and if reasonable suspicion exists, employers should perform reasonable investigations, and based on the findings, possibly perform reasonable intervention to remedy the situation.

A dramatic and unfortunate case of like this sends strong messages to public and private employers alike. Rid your organizations of the temptation to look the other way or to place blind faith in people. It all comes down to doing what’s right and the right thing to do is to craft serious hiring and retention practices that put safety and security considerations at the forefront.

If you’re serious about hiring and retaining the right people, we’d love to talk to you.

Request a Free Employment Screening Risk Assessment

Employment Screening Blog

In many organizations the IT department is a sort of a locked door world where a few computer “geeks” hold the keys and the rest of us can only hope they’ll be here soon to fix our problems. In what often seems like magic, IT can rid a computer of viruses, troubleshoot email issues, provide access to systems and data, and control a potentially long trail of valuable and sensitive information.

At the same time, left unchecked, IT-related staff can present a significant risk to a company’s security since many are able to pull almost anything from a network, often with little or no oversight.

A recent Wall Street Journal article, “The Enemy Within,” showcased a heightened awareness among organizations of the risks surrounding the activity of their IT staff. The article points out that more companies are performing more intense screening and monitoring of certain IT professionals, due to the inherently sensitive nature of the job and the sheer amount of information that IT staff can access.

Address the role-related risks.

Think about the IT staff in your organization. Do you really know what they’re up to? Are you really aware of the information they have access to?

Do you have checks and balances in place to:

1. Hire the right people, with a proven track record of integrity?
2. Monitor those people on the job to be sure their actions remain above board?

You may not think your company has the wherewithal (i.e. budget, time, energy, expertise) to address IT personnel risks, but considering the alternative… can you really afford not to? Sensitive employee file information saved on the server, company email, client information and personally identifiable information (PII) are all examples of the types of data typically flowing across a company’s network throughout the day.

At a minimum, companies should take proactive measures to look at the past employment history, conduct thorough reference checks, and finally, perform comprehensive criminal record research for IT staff.

When it comes to your company’s security, as well as the privacy of your employees, customers, and stakeholders, you simply can’t afford to bring on an IT employee whom you haven’t carefully screened.

It all starts with risk assessment.

An employment screening risk assessment will help you identify the risks that will require mitigation through background screening and monitoring. Your background screening provider should offer expertise, and a consultative approach to bring these risks to light and help you develop a plan to address them.

At Proforma Screening we’re offering a free risk assessment to help.

Employment Screening Blog

We’re all aware of the need to distinguish between independent contractors and employees when it comes to taxes, payroll, and HR benefits. But how about when it comes to hiring risks?  Regardless the payroll category one thing is for sure: If a contingent worker doing work for your company causes harm to your employees, your customers, any member of general public, or the property of others, you can bet your company will be first to blame.

Things get even more interesting when you consider the Department of Labor’s desire to update the definition of “employee” vs. “contingent worker” such that workers who are economically dependent on the entity for whom they perform services generally should be treated as employees. In other words, the old belief that only workers under your direct control will be considered employees is filled with holes.

Check Your Definition of Background Check Against Theirs

We talk to many employers who tell us they’re risks are covered because their subcontractors are already subject to background checks under their respective placement agencies, companies, associations, or otherwise. You would do well to remember: your definition of a background check and someone else’s may be entirely different.

To some companies, a background check consists of a cursory database inquiry (and you know what they say about the risks of database criminal records.) Your company, on the other hand, shouldn’t settle for anything less than a comprehensive background check that involves a more holistic view of your actual employee candidates.

Why wouldn’t the same standard be set for your contingent workforce as your own employee?  Of course it should!   It’s a simple matter of smart risk mitigation to make certain this group is being screened to the same extent you would screen an employee with the same role in your organization.

The Basics of Contingent Worker Screening

Here are a few key considerations when it comes to developing your contingent workforce background screening program:

• Work with your background screening provider and employment attorney to define your screening requirements on a per-role basis.
• Set contractual obligations for third party contingent staffers to ensure the subcontractors they supply you with are screened at the required level.
• If the hiring responsibility is entirely in the hands of your company, run these workers through the same screening protocol as your staff.  There need be no difference.
• Apply the same decision criteria to your contingent workers that you apply to your employees.

In the end, a smart screening program is one that includes ALL of the workers who represent your brand and your interests.

Get started today with a free employment screening risk assessment.

Employment Screening Blog

Complacency is a dangerous culture that permeates beyond the walls of mega corporations and extends into the reaches of every day companies and institutions. The March 2012 issue of Risk Management Magazine devoted an entire 4-page article to the topic of complacency. Defined as “’self-satisfaction especially when accompanied by unawareness of actual dangers or deficiencies,” complacency stems from a so called “confirmation bias,” which is the tendency to look for or interpret information in a way that confirms currently held beliefs. It can also be attributed to being overly-familiar with a situation.

Snapping Your Fingers Won’t Keep the Tigers Away

We’ve all heard the story, in one form or another, about the kid who snaps his fingers compulsively. The doctor asks him why, and he says it’s to keep the tigers away. “But there aren’t any tigers in North America,” the doctor says. And the kids responds, “See! It works.”

Among the many points this story can illustrate, one point stands out: When we believe something, we tend to not look at those things that might make us behave otherwise. Never mind that there aren’t any tigers in North America because snapping his fingers makes the kid feel better! Hard to argue with that.

In a similar way, people operating in a culture of complacency seem to have the belief that “there are no tigers ready to pounce on our organization so why should we snap our fingers?” Or, “There may be risks out there but we haven’t experienced their impact yet so why should we do anything?”

In a culture of complacency individuals inside the organization look past risks. They read headlines featuring the stories other companies or institutions scared by the findings of employee embezzlement, workplace violence, theft, high turnover, or worse… and think to themselves, “Wow. Stinks to be that company. Things like that don’t happen to us, thank goodness.”

Sound painfully familiar?

Kick Complacency to the Curb

People are the driving force behind the safety, quality, and productivity of your company. As such, you cannot afford to allow complacency to take hold. Employment screening can lessen your risks and improve your chances of hiring the right people, right off the bat. And while there will always been some level of “residual risk” that we must accept, a complete risk management program and can help mitigate the risks that threaten your entire organization.

When it comes to hiring, employment screening is a risk management strategy designed to reduce the risks your organization faces in relation to their employees. And let’s face it: just about any risk you can imagine starts and ends with people.

Hire the right people and your risks are measurably less. Hire the wrong people, and you’ll open the floodgates to a plethora of problems.

Let us help you take the first step: Request a Free Employment Screening Risk Assessment

Employment Screening Blog

What are we thinking?

Background checks require HR to walk a fine line between an individual’s privacy rights and a company’s need for due diligence and risk management. Social media background checks make that line awfully hard, if not impossible, not to cross. So for all there is to like about social media for background screening there’s just as much to make you want to run the other direction.

Out of date information, mis-tagged photos, mis-identified profile pages, and are you sure you know what the people in those photos are actually doing, or that you’ve actually got the right person’s profile? Heck, there are 69 other people in the U.S. that share my name Michael Gaul. I could only hope those other Michael Gauls aren’t out there tarnishing my reputation with their risqué social media behavior.

Have you ever tried to un-ring a bell?

The biggest issue of social media background checks comes down to this: Employers who venture their own path through an applicant’s social media background are certain to get more than they bargained for. And that can be awfully risky.

You might think you’re just going to take a quick peek at a Facebook profile to assess some specific personality trait but what you may actually uncover is a person’s religious or sexual orientation, age, marital status, or other factor that should simply not be taken into account in making an unbiased hiring decision. Yet, how the heck do you think you’ll prove that, while you did happen to find out your applicant is homosexual, bisexual, Muslim, Christian, African-American, Hispanic, etc. those factors did not impact the fate of an unsuccessful applicant? Once the bell is rung… it can’t be undone.

Do social media background checks have a place in employment screening?

Indeed, it is possible to get the benefits of social media insight with fewer associated risks. Quite simply, the best approach to social media background checks is to hire a professional background screening company to perform the social media investigations on your behalf.

For the same reason you wouldn’t go down to the court house and pull your own criminal records report or run an “instant” background check online, employers should think twice or more about doing the same with social media.

There’s a reason employers turn to professional screening companies for these types of checks. It’s inherent in the process of such providers to protect the interests of employers and applicants, while providing you with valuable insights from which to make better hiring decisions.

A professional background screening company will be trained, experienced, and qualified to distinguish between things that are discernible, reportable, and fair to consider in the hiring process. Plus, your screening partner will be able to assist beyond just social media checks to make sure you have a balanced, comprehensive, and compliant approach to employee background checks.

Ultimately, by going through a third party instead of allowing your hiring managers to run rampant around social media sites you’ll be protecting your company and promoting a fair hiring process that your applicants will appreciate.

Need help? Discuss your employment screening program with a professional. Call (866) 276-6161 or request a free risk assessment.

Employment Screening Blog

This can spell serious t-r-o-u-b-l-e for organizations that have not reviewed their hiring or employment screening practices lately, or those that may have failed to address long-standing holes or problems.

The EEOC’s Strategic Plan for 2012-2016 aims to end unlawful employment discrimination by focusing on three strategic objectives:

1. Combat employment discrimination through strategic law enforcement.

NOTE: As per the agency’s statutory mandate, the majority of the EEOC’s financial and human resources will be devoted to this first objective.

2. Prevent employment discrimination through education and outreach.

3. Deliver excellent and consistent service through a skilled and diverse workforce and effective systems.

Examples of ‘Systemic’ Discrimination Practices:

You might be wondering if the types of systemic discrimination practices being targeted by the EEOC are anything your organization needs to be concerned with. Here are just a few examples of systemic discrimination provided by the EEOC:

• Discriminatory barriers in recruitment and hiring
• Discriminatorily restricted access to management trainee programs and to high level jobs
• Exclusion of qualified women from traditionally male dominated fields of work
• Disability discrimination such as unlawful pre-employment inquiries
• Age discrimination in reductions in force and retirement benefits
• Compliance with customer preferences that result in discriminatory placement or assignments

Employment screening practices and the ‘systemic’ test:

There are many areas where anti-systemic discrimination practices intersect with effective employment screening practices. Care must be taken in collecting, interpreting, and utilizing employment screening data to make hiring decisions.

Will Your Employment Screening Process Meet the Test?

If your employment screening process or hiring practices as a whole lacks the wherewithal to withstand EEOC interrogation, the agency’s first objective should make you more than a little nervous.

Last year the EEOC hit a record high number of cases against employers and given this strategic plan, the next several will likely continue the trend.

We invite you to request a free employment screening risk assessment to analyze the key factors that determine your ideal employment screening approach.

Employment Screening Blog