Wishful Thinking On Employment Background Checks

01/11/2019

Federal Law ensures the right of job applicants to dispute information on an employment background screening report that they feel is incorrect, however sometimes these disputes are a result of “wishful thinking” on the applicant’s part.

Some examples of background screening wishful thinking disputes include:

The applicant believes that no criminal records older than seven years will be reported.

The applicant believes that a disposition of “Adjudication Withheld” is the same as an expungement or order to seal and will not be reported, or if they have an open case against them that it will not be reported because there is no disposition yet.

The applicant believes dismissed or “nolle prossed ”(Latin for “Not Prosecuted).

Charges that are part of a multi-count case will not be reported. (These dismissed counts can be reported as long as they are part of a case that has at least one reportable disposition.)

The applicant attempts to give a “watered down” version of the crime that resulted in the record.

Unfortunately these types of employment background screening disputes are time consuming for the employer as well as the screening firm but they must be addressed in a professional and timely manner and any correspondence or action should be documented.

An Employment Screening Background Check can consist of many different individual searches. Below are some of the most common employment background check terms and definitions.

Criminal Background Check – This is one of the most common employment screening background check services. This search will report criminal records in the jurisdictions the applicant or employee currently resides or has resided. All potential criminal records are verified (usually at the county court of origin) before being reported to the employer.

Social Security Address History Trace – This search is usually used as part of the Employment Screening Criminal Background report as it helps to determine all of the jurisdictions the applicant or employee has lived in.

50 State Sex Offender Registry Search (SOR) – This search is also commonly part of an Employment Screening Criminal Background report and will search the sex offender registry in all 50 states.

Employment Screening Motor Vehicle Report (MVR) – This search, sometimes referred to as an Employment Screening Driving History Report will provide information on the applicant or employees driving history including tickets, suspensions, revocations as well as the name and date of birth of the individual.

Employment Screening Credit Report – This search will provide information based on the applicant or employees credit history as reported by the major credit reporting agencies.

Employment Screening Credit Reports are intended to be used only for an employment related decision and do not provide a credit score. Several states have passed laws limiting credit reports for employment decisions. For a list of these states please see the page from our website below:

https://national-employment-screening.com/employment-screening-credit-reports/

Education Verification – An Employment Screening Education Verification search will verify any educational credentials (degree, license, certificate) the applicant or employee has listed as well as location of the school or university and the dates attended.

Past Employment Verification – This search will verify past employers, dates of employment and reasons for leaving that are provided by the applicant or employee.

Employment Screening Reference Check – This search will provide personal references who are specifically identified by the applicant that could provide information on work history and aptness for employment.

What Will An Employer See In My Background Report?

Professional, high level  employment screening background checks are arguably the most thorough background checks available.

In many ways surpassing the “gold standard” FBI database. Theses screenings are done this way so an employer can make the most informed decision regarding a candidate’s qualification and this is accomplished by providing only the most accurate and up to date information available.

Employers and background check companies alike are highly regulated by federal law in order to prevent the reporting and use of inaccurate information such as “false hits” or unverified criminal records.

The rule of thumb as to what an employer will see on your background report is generally “They won’t see anything on it that you don’t already know about” in other words if there is something in your past criminal, education, or work history that you would rather hide, it’s most likely no going to happen.

Employment background checks can contain a considerable amount of information depending on how comprehensive a report the employer would like to run, for example most all employment background checks will start with a criminal history check which will provide any criminal records (if any) that are in your past such as felony and misdemeanor convictions or any outstanding warrants.

The criminal history check will usually always include a check of the sex offender registry as well.

The background check may also include past employment history providing previous jobs held, titles, salary, and dates of employment as well as an Education verification that will report any degrees, majors, GPA, and graduation/enrollment dates.

Depending on the position applied for the employment background check may also include an credit history report.

As a potential employee, you already know what’s in your history. Its best to be upfront and honest as today’s employment background checks are exceptionally thorough and it’s likely that the employer will find out any discrepancies.

 The Proper Role And Use Of Employment Screening In A Business Risk Management Program

 The foundation of a good risk management program for any business is a quality employment screening program.

From an insured’s perspective, the best losses are the ones they never have because applicants that produce losses and litigation were never hired.

Employment screening law enforcement has been moved by the current administration from the Federal Trade Commission (FTC)
to the Consumer Financial Protection Bureau. Enforcement of the laws surrounding employment screening have received
heightened enforcement by this new Federal agency.

It is important to review the following aspects of a client’s employment screening program.

1. Are you currently getting a check of Federal criminal records as part of your pre-employment background checks?
Many employers think they do, but in fact Federal criminal records checks may not be a part of their current employment screening program.

Since about 10% of all criminal arrest records are now in the Federal system, many crimes such as embezzlement, credit card fraud etc.,
are prosecuted in the Federal court system and will not appear as part of a routine state or county criminal records check.
This important records check should definitely be a part of any background check.

2. Is your client getting instant driving records on all applicants as the first part of the employment screening process?
Many times having the results of an instant driving record saves the client from incurring any further costs associated with the hiring process.
such as interviews and other background checks.

3. Are all of the  background screening program components FCRA (Fair Credit Reporting Act) compliant.
Beginning with the authorization/release form?

4. Is it a standalone release as required by law? (soon a two page release will be required to be legally compliant)

5. Does the applicant release form disclose the nature and scope of the background check?

6. When a decision not to hire is made based on a background check result are the two part adverse action laws complied with?

7. Is the applicant provided a copy of the record if adverse or negative action is taken based on the report?

8. Is the applicant provided with a revised copy of the Summary of Rights as required by Federal law updated January 2013?

Please feel free to call us with any questions on any matters concerning employment screening.

The following article, excerpted here,  provides a good source of information for discussion of the issues surrounding the use of criminal record databases in the hiring process.

By Melissa Sorenson, National Association of Professional Background Screeners

There is a popular myth often times referenced by Hollywood that seems to help fuel the debate among Washington policy makers regarding the use of background checks from employment screening to gun ownership. This myth is the FBI database. In reality the FBI “database”  is not one data base but a collection of different systems organized under the National Criminal Information Center (NCIC). Currently there is no such thing as a single national database that contains all the criminal records in the United States.

The NCIC database is not considered reliable as the only source for background checks. Even the FBI acknowledges its limitations, noting that is contains only about 50 – 60 percent of all available criminal records.

Furthermore private employer access to the NCIC database is restricted by state or federal law with the exception of regulated industries involving access to vulnerable populations such as children or the elderly.

There are a number of multi-jurisdictional databases, sometimes referred to as “national databases” that third parties such as employers do have access to. These databases are usually compiled by purchasing copies of criminal records.
Record searches may include government watch lists, incarceration records, sexual offender registries, court records, county records, and state records.

These “multi-jurisdictional” databases can serve a valid propose for employment screening but they should be used carefully. Some key points to keep in mind:

Data cannot be counted on to be 100 percent accurate and complete

“National” database is misleading

Data structure within the database is not always reliable

Use of any data in an employment decision must be FCRA compliant

The best practice for employers is to use these types of databases only as a component of their overall employment screening program as the information provided by them is never as reliable as the source data.

Despite the Hollywood myth, the reality is that employment background searches are complex and time consuming, requiring much more effort to provide accurate information.

 The following article, excerpted here,  provides a good source of information for discussion of the issues surrounding the use of social media in the hiring process.

As posted by SHRM (Society For Human Resource Management)

“Social Media Use in Hiring: Assessing the Risks”

By Jonathan A Segal

 One of the most important intersections between social media and employment is in the hiring process. It is here where there are great potential risks and rewards.

Smart employers want to cast as broad a net as possible to reach as many potential candidates as they can, and they are increasingly harnessing social media as part of their recruitment strategy. But it should be only a part of the strategy.

Remember that social media postings are “advertisements” that must include the appropriate equal employment opportunity (EEO) and/or affirmative action tagline. Further, the postings must be retained like all other hiring documents as required by law (or longer if the employer’s policy has a longer duration period)

When surveyed in 2013 about why they decided not to use social networking sites for candidate screening, 74 percent of organizations said they were concerned with legal risks or discovering information about protected characteristics when perusing candidates’ social media profiles.

This is a legitimate concern. For example, from a candidate’s picture, an employer may learn his or her likely race, approximate age and more.

People also commonly post personal information such as medical or family problems. However, the fact that the employer may learn information about a candidate’s protected-group status or other information does not mean that the employer will use it.

As with other kinds of background checks, there is no “on-off” switch when it comes to using social media when hiring. Rather, key questions that should be considered include when it is done, what is looked at, who is doing the looking, and what is and is not considered in the decision-making process.

Today, Millennials account for 36 percent of the U.S. workforce, according to the Bureau of Labor Statistics, and they will account for 75 percent of the global workforce by 2025. Given that this group of employees has grown up actively communicating via myriad social media sites and devices, the use of social media is a workplace trend with staying power for the foreseeable future.
Existing laws provide a useful framework for social media use in hiring. Although the communication methods are new, the legal issues they raise are not.

Jonathan Segal