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By Lester S. Rosen
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I. Preliminary Steps -- Training Policy and
Procedures
1. Organizational responsibility for safe hiring
a. Is there a position in the organization
specifically responsible for safe-hiring practices?
b. Is that position centralized in HR or
Security, or decentralized in hiring departments?
c. If decentralized, are there policies
and procedures in place for uniform procedures across the organization,
review and audit of performance, and training?
d. Is the responsibility for safe hiring
part of a periodic review?
2. Policies and procedures in place
a. Is there a company policy on safe hiring?
b. Does the employee manual address safe
hiring issues?
3. Training
a. Is there training for hiring managers,
HR, etc.?
b. How is the training conducted?
c. Frequency of training?
d. How is training success monitored and
measured?
e. Who analyzes, implements, and evaluates
the training program?
4. Auditing of safe-hiring practices
a. Is there an audit procedure to ensure
safe-hiring practices are followed?
b. Where is the completed audit information
maintained?
c. How frequently does auditing occur?
d. Who conducts the audit process?
5. Procedure to ensure hiring mangers
follow plan for each hire (See attached checklist)
6. Communication of policies and procedures
a. How is the company's policy communicated
to the workforce and managers?
b. How frequently is the information communicated?
II. Placing Applicants on Notice before Hiring
Process Starts
7. Procedure to Place Applicants on Notice (Goal--to
get maximum advantage from safe hiring by discouraging applicants
with something to hide from applying in the first place).
a. Is there notice
in the job announcement, bulletin, classified advertisement, Internet
site, etc.?
b. Is there a
notice on the application form that a prospective candidate receives?
III. Application Stage
8. Does the firm use an application form?
(Note: Use of an employment application form is considered a best
practice. Resumes are not always complete or clear. Applications
ensure both uniformity and that all needed information is obtained,
prevents employers from having impermissible information, and provides
employers with a place for applicants to sign certain necessary
statements.)
9. Does the application form have all necessary
language?
a. Broadest possible
language for felony and misdemeanor convictions and pending cases.
(This helps discourage applicants with something to hide and to
encourage truthful applications. One of the biggest mistakes employers
make is to only ask about felonies on an application form. Employers
may inquire about misdemeanors to the extent allowed in their state.).
b. Statement that
criminal records do not automatically disqualify.
c. Statements
that lack of truthfulness or material omissions are grounds to terminate
the hiring process or employment no matter when they are discovered.
(This is particularly important if a criminal record is found. Under
current law, a criminal record may not be used automatically to
disqualify an applicant unless there is a sound business reason.
However, if an applicant has lied about a criminal matter, the falsehood
can be the basis for an adverse decision.)
d. Statement that
employment is at will.
e. Release for
references and other background materials
f. Other standard
statements (e. g. no discrimination, mandatory arbitration, etc).
10. If the firm does not have a formal application
process, is there a supplemental form that contains the language
in section nine above?
11. Does firm require a release for a background
check in the application process?
(Note: Have each job applicant sign a consent form for a background
check, including a check for criminal records, past employment and
education. Announcing that your firm checks backgrounds may discourage
applicants with something to hide, and encourage applicants to be
truthful and honest about mistakes they have made in the past.)
12. If using an outside background screening
service, does the firm have a separate form as required under the
FCRA?
13. Does application or form provided by a screening
service request listing of all past addresses for seven to ten years?
This is also needed for a criminal search. (Note: Include future
screenings in the consent language. This becomes important if a
future investigation is required for some form of workplace misconduct.)
IV. Application Review Stage
14. In reviewing the application, does firm
look for the following critical factors?
• Applicant does not sign application.
• Applicant does not sign consent or background screening.
• Applicant leaves criminal questions blank (the honest criminal
syndrome).
• Applicant self-reports a criminal violation.
• Applicant fails to explain why he or she left past jobs,
• Applicant fails to explain gaps in employment history.
• Applicant gives an explanation for an employment gap or the
reason leaving previous job that does not make sense.
• Excessive cross-outs and changes.
• Applicant fails to give complete information (i.e. insufficient
information to identify a past employer, leaves out salary, etc).
• Applicant failed to indicate or cannot recall the name of
a former supervisor.
15. In reviewing applications or resumes, does
firm look for employment gaps?
(Note: It is critical to verify past employment to determine where
a person has been for the last 5-10 years, even if you only get
dates and job titles. Look for unexplained gaps in employment. Generally,
if you can verify that a person was gainfully employed for the last
five to ten years, it is less likely the person spent time in custody
for a serious offense, although this does not eliminate the possibility
of lesser offenses.
16. In reviewing applications, does firm examine
reasons for leaving each job?V. Interview Stage
17. Are interviewers trained in legal compliance:
a. Treating all
applicants in a similar fashion
b. Questions that
may not legally be asked (i.e. questions that are discriminatory
or prohibited by law)
c. How to respond
when an applicant volunteers information that an employer may not
ask about or possess
d. Statements
that an interviewer should not make to an applicant, such as promises
about the job
e. Uniform note
taking and record keeping procedures (e.g. do not make notation
on resume)
18. In interviews, are certain key questions
asked that are designed to ensure honesty and integrity?
(Note: Towards the end of an interview, advise applicants that the
firm will perform a criminal background and reference check as a
standard business practice, and ask whether the applicant has any
concerns to share. Good applicants will shrug off the question,
while applicants with a problem may either reveal something or withdraw.
Applicants should also be asked during an interview what they think
a former employer will say about them. For example, "If we
were to contact past employers, how would they describe your job
performance?" Since applicants have signed releases and have
been told such checks may occur, they may be motivated to reveal
information about past jobs.)
VI. BackgroundInvestigation Stage
19. Does firm check references?
(Note: Verifying past employment is one of the single most important
tools for an employer. Past job performance can be an important
predictor of future success. Some employers make a costly mistake
by not checking past employment because they believe past employers
may not give detailed information. However, even verification of
dates of employment and job titles are critical because an employer
must be concerned about unexplained gaps in the employment history.
In addition, documenting the fact that an effort was
made will demonstrate due diligence. Although there can be many
reasons for a gap in employment, if an applicant cannot account
for the past seven to ten years, that can be a red flag.
It is also important to know where a person has been
because of the way criminal records are maintained in the United
States. Contrary to popular belief, there is not a national criminal
database available to most employers. Searches must be conducted
at each relevant courthouse, and there are over 10,000 courthouses
in America. However, if an employer knows where an applicant has
been, it increases the accuracy of a criminal search, and decreases
the possibility that an applicant has served time for a serious
offense. Finally, documenting an attempt to obtain references can
demonstrate due diligence.)
20. Does firm take any other steps, such as
checking court records, or outsourcing to a background firm? (Note:
If outsourced, the Fair Credit Reporting Act (FCRA) applies. If
background screening is done in-house, the investigation falls under
rules governing privacy rights of employees.
21. Before outsourcing to a third party service
provider, has firm taken the following into account:
a. Expertise/knowledge
of the service provider.
b. Legal compliance--There
are numerous issues surrounding legal compliance. A screening service
must understand the laws surrounding pre-employment screening and
hiring, and make a commitment to provide an organization only with
information an organization may legally possess. An outside firm
should also be able to provide FCRA compliance.
c. Personal service
and consulting--It is critical to keep in mind that pre-employment
screening is much more than just providing raw data. A screening
company should be able to assist the human resources department
in the same manner as any other consultant.
d. Training/consulting
services available.
e. Pricing.
f. Turnaround
time.
g. Internet order/reporting
options.
22. Mechanics of the screening process
a. Is there a
specific person in change of mechanics of the screening process?
b. Process to
send requests to screening company and to track progress.
c. Determination
at what stage in hiring process is screening is conducted (not all
applicants are screened--typically only the finalists are subject
to screening).
d. Determination
of the degree of screening for types for position (not every position
needs to be screened at the same level).
e. Uniform screening
procedures (are similarly situated applicants treated the same i.e.
no discriminatory practices).
f. Privacy protected
in the manner reports are transmitted to employer.
g. Policy that
only persons in organization with proper authority will review the
report.
h. Policy concerning
storage of background reports (should be stored separately from
personal files).
VII. Analysis of information stage
23. If negative information is located, is there
a policy or procedure to follow?
a. Policies --
are there written guidelines to follow?
b. Documentation
-- are all procedures and decisions documented to file?
c. Review -- is
there a review process, with a particular person in the organization
in charge of the process?
d. Uniformity
-- are similarly situated applicants treated the same?
e. Privacy --
is there a mechanism to ensure that information remains private
and secured, and only appropriate decision makers view the information
(i.e., reports with negative information are not sent through office
mail to a hiring manager's desk)?
f. Legal compliance
-- If a third party obtains information under the FCRA, is there
a procedure to ensure pre-adverse action and post-adverse letters
are handled as required by law?
24. If the negative information is a criminal
record:
a. The firm understands
and follows the Equal Employment Opportunity Commission rules concerning
the use of Criminal records. Under EEOC rules, an employer may not
deny employment to an ex-offender unless it is a business necessity,
determined by reviewing the following three (3) factors:
1.
the nature and gravity of the offense;
2.
the amount of time that has passed since the conviction or completion
of sentence.
3.
the nature of the job being held or sought.
b. Be aware if
your jurisdiction has a prohibition on considering arrests not resulting
in convictions. (If your jurisdiction allows consideration of arrests,
then an employer must independently verify the underlying behavior
and may not use an arrest all by itself as an indication of lack
of fitness. The critical inquiry is the behavior, not the police
action.)
c. That the firm
has independently verified the nature of the offense and has not
merely taken the word of the applicant at face value or relied upon
the information in court records solely.
(A Court record all by itself may be insufficient to determine the
true nature and of the offense, since the final outcome could have
been influence by a plea bargain or some other resolution not reflecting
the true behavior. A firm should attempt to verify the true nature
of offense by contacting or at least attempting to contact a person
in authority, such as parole/probation officer, police officer,
and prosecuting attorney).
d. The firm has
conducted additional due diligence to discover if there are other
offenses in addition to any that are self-reported. (Just because
an applicant self-reported an offense does not eliminate the possibility
of other offences the applicant did not report).
e. Did the applicant
lie in the application and fail to disclose a criminal record in
response to a direct question. (Note: this is the reason why it
is important for an application to ask the broadest possible permissible
question about a criminal record, and to advise applicants that
any dishonesty is grounds to terminate the hiring process or employment.
If an applicant lies about a criminal record, then the reason to
deny employment can be on the basis of a false application.)
25. If a firm makes a decision to hire someone
with a criminal record or some other negative finding:
a. The firm has
examined the type of support, supervision and or structure that
may be needed for the individual to improve the chances of success
with the organization (i.e. that the firm is proactive in taking
steps to reduce any potential difficulties)
b. The firm has
considered the nature of the job and the circumstances of the past
offense, in order to take appropriate measures to protect the firm,
co-workers and the public from harm. This involves a determination
of whether the particular job is a good fit for the ex-offender
in view of the nature of the job and the nature of the offense.
(For example, a person with a history of theft, may not be a reasonable
fit for a position that involves access to cash, assets, or confidential
information. However, that person may be well suited to a number
of other jobs within an organization.)
26. If firm begins employment before the background
check, is there a conditional offer to the applicant? (Note: If
employment begins before a background check is completed, state
in writing that employment is conditioned upon receiving a report
that is satisfactory to the employer.)
VIII. Post-Hire stage
27. Have documented policies and procedures
that recognize a firm has a legal obligation to continue due diligence
even after a person is hired. A firm can be liable for negligent
retention, negligent supervision, and negligent promotion.
28. Have policies and procedures to govern post-hire
workplace situations (Timely and attentive management of potential
problem situations along with appropriate follow-through and documentation
are the keys to avoiding legal claims of negligent hiring/supervisor)
a. Does employer
have policies and procedures concerning workplace misconduct?
b. Does the firm
conduct periodic performance reviews of workers that include issues
related to workplace conduct?
c. Are supervisors
trained to recognize, report and deal appropriately with workplace
misconduct?
d. Are supervisors
periodically trained and educated regarding the employer's liability
for negligent retention, supervision or promotion?
e. Is there a
procedure to investigate workplace misconduct?
f. Is there a
mechanism for workers or managers to report and record workplace
misconduct?
g. Is it part
of written job descriptions for supervisors to record, report and
address workplace misconduct?
h. Is compliance
with the duty to record, report and address workplace misconduct
part of the periodic performance appraisal of supervisors, so that
they understand that they are evaluated in part upon monitoring
workplace misconduct?
i. Is there periodic
training on workplace violence, so that supervisors are aware of
the importance of prevention and signals to watch for?
©Lester S. Rosen, Employment Screening Resources,
2001. Version 1.7.
The information contained here is intended to provide useful information
on the topic covered, but should not be construed as legal advice
or a legal opinion.
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Lester S. Rosen is an attorney and President of Employment Screening
Resources, a national background screening company located in California.
He is a consultant, writer, and frequent presenter on the Fair Credit
Reporting Act (FCRA), pre-employment screening, and safe-hiring
issues. He is a certified specialist in criminal law in California,
a former deputy District Attorney and defense attorney, and has
taught criminal law and procedure at the University of California
Hastings College of the Law.
Reprinted from
workforce.com
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©2002 TABIC. All rights reserved.
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