1.) No More Paper!!! Technology, Technology, and more Technology!
Technology is changing the future of our businesses and workforce, and as a result, it is critical to understand how to best implement a solution where technology does the heavy lifting for you! Resources are limited. From the recruiting process through interview, selection, background investigation and onboarding – having a solution that is paperless and seamless should be standard. Applicant Tracking System (ATS) Integration with any platform should be a critical component of all providers. Most importantly, the applicant experience should consist of an electronic release form and one that may be executed from any smart phone or device. Once completed by the applicant, YOU should not have to be involved until the investigation is complete and a decision is ready to be made.
2.) Compliance: How familiar is the provider with Compliance, FCRA and Best Practices?
After reviewing the following astronomical settlements in these recent Fair Credit Reporting Act (FCRA) and Equal Employment Opportunity Commission (EEOC) class action lawsuits, you’ll have a greater appreciation of the importance of doing business with a background investigation agency that prioritizes compliance expertise. Prior to engaging with a firm, interview them to ensure they are familiar with not only best practices, but also are compliant with the latest trends to protect you from risk. A simple, quick and inexpensive background investigation may be the costliest investigation you will ever conduct, if not handled properly. Employers throughout the US have paid out more than $180M in lawsuits for failing to be compliant with industry best practices.
FCRA Violation – Credit Reporting
The Eastern District of Pennsylvania ruled a furnisher of consumer credit information had to pay $3.3M because they provided incorrect and adverse findings to a company that denied an applicant employment. The applicant also alleged that he was not given notice that the information was being provided to his employer.
FCRA Violation – Proper Disclosure Forms
A retail pharmaceutical company received a $1.3M penalty for violating the FCRA stand-alone disclosure requirement. When the applicant signed the background check authorization form and liability waiver, the suit claimed the forms were “embedded with extraneous information” instead of in a stand-alone document.
EEOC Violation – Salary History
Companies who do not follow the rules forbidding salary history questions on applications in certain states can run the risk of litigation. If a background investigation provider performs past employment checks in cities, counties and states that prohibit salary history questions, companies run the risk of compensating applicants with an incorrect pay scale. In 2019, a health care firm paid a $50,000 EEOC equal pay discrimination fine. A female nurse sued on the basis that she earned less than a male nurse who performed the same work. Current salary history ban locations include: Alabama, California, Colorado, Connecticut, Delaware, District of Columbia, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Puerto Rico, South Carolina, Utah, Vermont, Washington, Wisconsin.
EEOC Violation – Ban the (Criminal Conviction Question) Box on Employment Applications
EEOC prosecutes employers that will not hire individuals with felony convictions. Two major retailers received fines in settlements totaling $194,000 for continuing to ask job applicants about their criminal histories on employment applications in their Buffalo, New York stores after the Ban-the-Box legislation was in effect across New York State. The locations with Ban-the-Box laws that apply to private employers include the District of Columbia, California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rohde Island, Vermont , and Washington.
A reputable background investigation firm will put an emphasis on compliance expertise and ethics. Be sure they understand EEOC rules forbidding discrimination against job applicants on the basis of race, color, religion, sex, national origin, age, disability or genetic information. They should stay abreast of ever-changing time reporting restrictions regarding criminal convictions. Click here to download an easy-to-read chart that includes a state breakdown.
You’ll want to know if the background investigation company is a member of the Professional Background Screeners Association (PBSA) with employees who are certified with FCRA Basic and/or Advanced training or certified as Criminal Research Providers. These credentials demonstrate a knowledge of responsibilities related to criminal history, FCRA compliance, data retention & security, and correcting information, disputes and complaints.
3.) Not all criminal background investigations are equal. What court level(s) exist and what searches should be included for employment candidates?
When it comes to pre-employment screening, it’s important to have confidence in the provider and process you select. Are they thorough and digging deep enough to ensure your applicant doesn’t have a criminal or other adverse background. Not all background screenings are created equal and it is critical to ensure that you understand the depth of each search and what is included. From a criminal records perspective, there are:
A search in city, town, or village courts is difficult because it limits you to knowing the town or village where the crime occurred and includes misdemeanor records only. Due to the number of cites, towns and villages in any given region or state, it is not feasible to search every area effectively. The best alternative is a Countywide or Statewide search.
This is a search for felonies (in most jurisdictions) in the county selected, usually by area of residency. In many regions this is limited to felony convictions that may have occurred anywhere in a given county. It is often recommended that this search be conducted in any region that an applicant has resided, worked, or received education.
This involves a search for felonies and misdemeanors throughout an entire state and includes all counties reporting to the state repository. In addition, this includes cities, towns or villages that are actively reporting to the repository. Many firms believe this search must be coupled with a countywide search but if your provider can verify that all counties are in fact reporting their data to the state repository, a countywide search is not always necessary.
This includes federal level crimes that are not covered under the searches above – (local, county or statewide). Crimes against the United States are prosecuted by a US Attorney and are indexed in federal courts. These include bank robbery, money laundering, credit card fraud, drug trafficking and more.
This search is a collaboration of local, county and statewide records from various regions throughout the United States. It is often used as a supplemental tool to complement any of the above searches. It is not ideal as a standalone search as it has very spotty court participation and requires actual source verification prior to being utilized in background investigations. This search often contains databases of incarceration, Department of Motor Vehicle records, and other random sources that independently are not compliant with the FCRA.
Criminal Search Summary:
Having an effective process in place to search all criminal levels is critical when selecting a provider. Missing one jurisdiction or court level could expose you to risk and have a significant impact on your organization. As you vet new providers, it is critical to understand the complexity of criminal record access. Ask all potential background investigation providers if they track adverse findings (how often something negative appears in the report) and what that percentage is. Every industry should have an average ratio as a benchmark and it’s important to know what that is. A reputable background investigation company should be willing to provide you with a complimentary risk assessment to let you know the areas where you may be vulnerable and where improvements can be made.
4. What searches or packages should be considered when implementing a new service?
It is important that you structure solutions according to hiring levels and are compliant with the Fair Credit Reporting Act (FCRA). In most cases, firms have an entry-level, mid-level, and high-level investigation. In each level, you can include searches that are effective and non-discriminatory. At minimum, it is recommended that a basic background investigation consist of Identity Verification, Criminal Convictions (various levels), and Sex Offender Registry. Beyond that, searches can be increased based upon position and level of responsibility. These include verification of an applicant’s past by checking credit, credentials, driver’s license, education, employment, references and more. You may also want to research a candidate’s past with an FCRA-compliant Social Media Investigation. This relatively new type of search can impact your hiring decision by revealing Racist/Sexist, or Discriminatory Behavior, Sexually Explicit Materials, Threats or Acts of Violence, and Potentially Illegal Activity. Keep in mind that ALL protected class information is redacted so you only receive appropriate content for your hiring decision!
5.) Is there anything that can be done to screen employees, post-hire?
Background Investigations are not for pre-hire applicants only. Once you have a workforce in place, having the ability to perform post-hire investigations is critical in many industries. A pre-employment investigation provides a criminal history, but periodic rescreening or continuous arrest monitoring can confirm that workers are currently not involved in wrongdoing that can negatively affect your company such as embezzlement, theft, assault or drug use. Ongoing background check services on existing employees are critical.
Healthcare companies involved with HR staffing will want to look for a provider that offers audit-ready credentialing services that confirms qualifications and provides on-going monitoring of existing employees. Providers offering services that automate verifications in seconds, such as records and licenses, through access to hundreds of primary sources is key. Monitoring services should be set up to provide instant notification when compliance issues occur.
Outside of the health sector, general employers will want to verify that the consumer reporting agency can offer continuous criminal monitoring on existing employees, especially if they work in sensitive areas such as company finance. Continuous criminal monitoring is ideal for employees who interact with vulnerable members of society, children or contractors hired to work in various businesses or people’s homes. This type of subscription service can be set up to monitor certain segments of the workforce or alerts can be customized by the seriousness of the crime. Having these options will give you peace of mind knowing your workers do not pose a threat to others.
Before selecting a background investigation firm or consumer reporting agency, do a little homework and ask some questions. You may think you are getting a bargain by picking a company that runs cursory searches but, in the end, are you confident that your applicant really is free from dangerous criminal convictions and everything on their resume is true? Remember these keywords when conducting your search – technology, compliance, criminal record complexity expertise, knowledge of new search trends and available post-hire investigations. If you do, you’ll end up with a background investigation company that will partner with you to establish a workforce that will attract the best talent in the world…and that kind of peace of mind is priceless!