The Do’s and Dont’s of Employee Background Checks

If you are an employer, you have no doubt at least considered doing some form of background check on an employee. If you are looking for a job, you will likely be subjected to a background probe of so...
The Do’s and Dont’s of Employee Background Checks
Written by Mike Tuttle
  • If you are an employer, you have no doubt at least considered doing some form of background check on an employee. If you are looking for a job, you will likely be subjected to a background probe of some sort in your hunt for a job.

    The hunt for background information can be as simple as asking for previous employer info and references on a tear-off application form – which may or may not lead to actually double-checking that info – or as complex as hiring a professional organization to do extensive checking onto a person’s past on as many levels as can be found.

    How much an employer actually checks, as opposed to trying to give the appearance of checking, is usually determined by how badly things could go if they did break bad. Will the potential employee be exposed to sensitive information? Will they have keys, alarm codes, vault access? Will they be privy to company secrets or information on other employees or clients?

    Maybe the question is not so much about security or honesty but performance. Will the employee be reliable in attendance? Will they come to work drunk? Or even just badly hung over? You may not care what they smoke in the privacy of their own homes, but will they try to sell weed on the clock? Are they likely to be arrested and miss work, leaving you in the lurch? A drug test won’t tell you that, but a background check might.

    There are a few ways to go about finding out what you need to know. Let’s walk through them.

    Ask. Simple as that, just ask the interviewee everything you want to know. Let him know that you will be looking to find answers to your questions. If he is not comfortable with your prodding or already knows what you will find, let him bow out gracefully on principle. This is not a game where you get points for finding out dirt on someone. All that will lead to is your going back to the résumé pile anyway. Short-cut the whole process and ask him what you are likely to find if you start looking for dirt.

    Has he been arrested? A “yes” may not disqualify him, in most cases. Have him tell you his side. For example, though I have never been arrested, I do have a charge on my record for “Theft By Deception”, which is my state’s way of saying I bounced a $10 check at a local gas station twenty years ago. Turns out, the whole thing was a huge mistake. I wrote a check on a business account that I kept little money in rather than on my personal checking account. We settled up; the County Attorney was notified; the charge was supposed to be dropped. But between paperwork mislaid and his suddenly leaving office, I ended up with a record of a charge that never even went to court. Call after call to that podunk courthouse has gotten me nowhere over the years. So, once in a great while, I have to tell that story. No employer has ever flinched about it; it’s even gotten laughs.

    Depending on how extensive a check an employer can afford to do, they will find these kinds of things anyway. Let the interviewee know that you will be checking, and don’t try to bluff them. If you do, and they hold out on you or find out that you never even called their references, you lose credibility as an employer once the relationship commences. If you’re going to bother hiring someone, treat them with enough respect to tell them what you will look for on them, then be decent about whatever you are told or find.

    Google. This one sounds easy enough, but it can be better for you if you know a few simple rules.

    1) Check all variations on the person’s mane. Maiden names, shortened names, nicknames – get that from your honest conversation with them, above – any other variation you can imagine, even misspellings.

    2) Check for images. You’d be surprised what you can find in an image search. You may not turn up an incriminating photo – though you may – but you may land on a caption that shows them at a Klan rally in college. Information like that may be useful to know.

    3) Be careful about people with same names. Pretty self-explanatory.

    4) Look for willingly-displayed social media info. It is pretty simple to find Facebook pages that have not been set to private. I found this one, and this one for stories I worked on. Photos posted thereon are fair game, as are comments friends make or put on pictures. Personally, I don’t like that these kinds of things are opt-out on Facebook, but the millionaires didn’t ask me, so hunt away. But, that brings me to the next important point.

    Passwords. Don’t ask for passwords to Facebook, email accounts, etc. Don’t ask interviewees to log in on a computer for you. If they have something protected, it’s theirs. You may or may not be able to navigate the legal waters surrounding this issue should you decide to do it anyway, but you will not likely survive the public relations nightmare that will follow. This may not have been the case even just a month ago. But now everyone is wise to this stunt. And, even if you do get someone to open up, you find nothing, you hire them, etc., where is the level of trust? Don’t be that guy.

    Credit checks. Danger, danger. Most people have become convinced that it is fine for anyone who feels they have cause to look into their credit reports. But, there are very particular ways that has to be done.

    According to Seyfarth Shaw, LLP attorneys:

    Under the Fair Credit Reporting Act (“FCRA”), an employer has a number of detailed requirements with which it must comply both before it can procure a background report (consumer report) about an applicant or employee, and if it intends to take action in whole or in part based on information in a consumer report. See 15 U.S.C. Sec. 1681 et seq. Specifically, an employer must: (i) have a permissible purpose for procuring a report in the first place; (ii) certify to the background screening company that it will comply with applicable law and will not use any information in violation of Equal Employment Opportunity laws or regulations; (iii) provide a written disclosure to the applicant or employee indicating that specific background checks will be conducted by a third party and obtain authorization from that applicant or employee to conduct such checks; and (iv) follow the detailed two-step adverse action requirements (including providing a copy of the report, a Summary of Rights, and a pre-adverse action notification letting a person know he or she could dispute inaccuracies in the report).

    Things in this regard went south quickly for First Transit, Inc when they denied employment to someone based on information in his credit report, but did not follow the “two-step adverse action requirements” – you know, that letter that tells you where you can view a free copy of your report? So, the interviewee sued. And won $5.9 million.

    So, if you are going to run credit reports on anyone, make sure you cross every “i” and dot every “t”. 5.9 million is a big number.

    Professional background check companies. Here’s where things really get dicey. All you have to do to be able to hire out to check backgrounds is print a business card or set up a site that fools enough people into paying you. A background check company could very well be one guy with a laptop in a coffee shop who has no more access to anything than you do. He just knows how to search a bit deeper. And, a guy like that will be very well served to dish up some dirt for you, even if it is inaccurate. It will make you think he saved you a lot of trouble and is well worth hiring again.

    There is no regulation whatsoever on companies that provide background check services. None. The National Consumer Law Center hopes to see that change. They list five things that their research reveals happen routinely in background check agencies:

  • Mismatch people (i.e. a person with no criminal background with someone who has a record, which is especially problematic for people with common names)
  • Omit crucial information about a case, (i.e. a person is arrested but then found innocent)
  • Reveal sealed or expunged information (i.e. a juvenile offense)
  • Provide misleading information, (i.e. a single charge listed multiple times)
  • Misclassify offenses (i.e. reporting a misdemeanor as a felony)
  • Many of these errors can be attributed to common practices by background screening companies, such as:

  • Retrieving information through bulk record disseminations and failing to routinely update their databases
  • Failing to verify information obtained through subcontractors and other faulty sources
  • Using unsophisticated matching criteria
  • Failing to use all available information to prevent a false positive match
  • Lacking understanding about state specific criminal justice procedures
  • Again, keep in mind that false-positives – or, in this case, false-negatives – look good on the company so long as they are not looked into any deeper. So there is little incentive for them to play fair. In fact, a squeaky clean report is more of a concern. What if there was something to find and they missed it? That would look bad. But, tell the client that this interviewee was once arrested for public intoxication and they will sigh with relief as they tell him, “Thanks, but no thanks”, even if you are wrong. They dodged a bullet there, this time!

    So, with all the pitfalls of looking into a person’s background, what’s an employer to do?

    I return again to point number one. Ask. Do that first, and be willing to hear something that you may not like. Treat everyone equally. Do your Googling work, perhaps assigning that research to someone who loves to dig around like that. You may consider subscribing to some record search services, but watch how you interpret what you find.

    If you choose to go a professional route, the National Association of Professional Background Screeners (the industry trade organization) has a voluntary accreditation program that contains some simple procedures (many of which are legally required) that background checking companies can take to enhance the quality of their information. Few companies are willing to voluntarily submit to their standards, but you can choose to only work with those that do.

    Keep in mind, you want your company to be protected, but everyone has rights. Run afoul of those at your own risk.

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