Employers now more than ever want to make hiring decisions instantly due to a very aggressive job market where applicants are plentiful. They want to ensure they are doing some form of “screening” either because they are obligated to do so due to a contract or they have a policy stating background checks are used in making a hiring decision. A major misconception in our industry is what employers think they are receiving when conducting instant employment background checks. Their understanding is that they can search the entire country and get reliable accurate public record information instantly. This is absolutely false, and we will discuss four mistakes employers make when opting for instant employment background checks as opposed to a thorough screening procedure.
There is no such thing as an instant and accurate search. Instant employment background checks will just expose your business to serious liability and increased operating costs by utilizing results from these online databases. We are constantly educating and stressing to not only our clients, but to all organizations the importance of a compliant background screening reports. We specifically highlight that all criminal convictions are held in each and every county nationwide, and not in a nationwide criminal database.
Furthermore, the accuracy of these instant criminal databases are not in compliance with the Fair Credit Reporting Act (FCRA). This states that when using public records, the employer must ensure “maximum possible accuracy” was used in obtaining the information. This is not the case for these criminal databases which in majority of cases will report criminal records based on a name match only, and not factor in a date of birth. Not using maximum possible accurate can potentially lead to a lawsuit if an employer makes a hiring decision based on inaccurate records.
Employers need to be confident that their background screening vendor has their best intentions in mind. With that being said, organizations need to keep an eye out for background screening vendors that have a complete release of liability in their contract with the employers. This means that if the employer is sued for using information provided by the vendor, the vendor in no way will be held liable. That is why some background screening vendors will extend such a discounted rate for these instant searches, making them not even worth the paper in which they are printed on. Employers must see the value in what they are receiving as part of their background screening program. The cost of doing non-compliant instant background checks far exceeds the investment in a federal and/or state compliant screening report.
Did you know most counties do not have records available online? As we mentioned above, all criminal convictions are held in each county nationwide (there are over 3,000 counties in the continental United States). The majority of these counties offer public access to their records that are updated daily from the court’s website. This allows companies to acquire accurate information from a reliable source in a timely manner; however, more than half of the counties nationwide do not offer public access at all. This means that in those jurisdictions, a court researcher must be hired to physically access the court records on-site to determine if there are any criminal convictions.
For example, an employer conducts a nationwide instant criminal search which reveals “no records” found; therefore, the applicant is hired based on there not being a presence of a criminal conviction. The new employee is found to have stolen money and/or products from the employer, which leads to an investigation. During the course of the investigation, it is revealed that the employee had resided in Los Angeles County, CA. The Los Angeles County does not provide case information to online instant databases. The employer could potentially be held liable for negligent hiring, which means any money spent on the background check was wasted.
Most instant searches do not offer this option due to its turnaround time. As a best practice for all of our clients, we run a social security address trace to determine residential addresses associated with the applicant’s social security number. This allows the employer to identify counties to look in for any criminal convictions. Additionally, the trace will also reveal any and all names associated with the applicant, which will factor in searching for criminal records. Names are identifiers when reporting criminal convictions along with a date of birth.
In contrast, instant employment background checks for criminal searches will only reveal records based on a name match in most cases, and will not factor in any residential locations associated with the subject of the report.
Employers should partner with a competent and compliant background screening company that understands both federal and state law when it comes to reporting accurate criminal records. With the evolution of the “ban the box” laws and Fair Chance Acts being imposed by states and counties, employers now more than ever must understand what their legal requirements are when utilizing criminal records in making an employment decision.
As the new year approaches, employers would be best served to revisit their criminal background screening policy and identify non-conformity with current law in order to decrease liability associated with potential discrimination lawsuits. Employers should always consult with their labor and/or employment law attorney when finalizing their policy. Employers should also review their contracts and agreements with vendors they use for employment background screening services to identify any release of liabilities or one-sided indemnifications.
Employers Choice Online, Inc. provides on-demand employment background screening, personnel compliance training services and products to employers in a variety of industries and sizes.
Employers Choice Screening aims to:
Compliance Training Group is the training services division of Employers Choice Screening that conducts:
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One out of every six crimes occurs in the workplace and homicide is the second leading cause of workplace death in the U.S.
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National Credit Verification Service reports that 25% of the MBA degrees it verifies on resumes are false.
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34% of all job applications contain lies.
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