A Staffing Supplier’s Responsibilities in Background Checks | DCR Workforce Blog

A Staffing Supplier’s Responsibilities in Background Checks

David Satterfield, 34, is a certified medical technician who worked as a temp at different medical centers. He is also terminally ill. Satterfield has just confessed to murdering an 86 year old woman in a nursing facility where he was assigned over the 4th of July holiday in 2007. He is also under suspicion in the death of another resident of the facility. When he was hired, the staffing supplier found that his record was clean and he had good references. Satterfield continued to work at other places since then until his own illness resulted in a conscience-stricken confession.

News like this usually jolts many people into reflexive action, but does not sustain its focus. If you are an employer, you would probably be wondering and worrying about the background check procedures put in place for your temporary workers. In the Satterfield case, it is unclear as to whether a more rigorous background check would have uncovered any indication of his homicidal behavior. In other cases, such as the Kwiatkowski case, there is overwhelming evidence of gross neglect. A rigorous process for verifying credentials and checking criminal history should be applied in every hiring situation. It’s equally important to know who is temporarily joining your workforce as it is to check into permanent employees.  However, peace of mind is a bit more difficult to obtain when dealing with non-employees.

When augmenting your workforce with temps, you are NOT adding additional employees, and you cannot act as an employer without exposing your company to co-employment claims. You must depend on the staffing agency supplying the worker to conduct all background checks and other screening. However, you do have the right – and obligation – to specify how the candidate vetting should be done. Your contractual agreements with each supplier should clearly specify the screening activities that must be performed, and the manner in which results will be presented and evaluated.

The process and standards should be the same whether the job requirement is planned as a temp-to-perm or strictly temporary assignment. The urgency in obtaining the position filled cannot justify the failure to verify a candidate’s background.

Adequate safeguards will need to be established in a contingent workforce management program if you are to avoid culpability for negligent hiring and entrustment:

  • For each type of position, specify the screening steps. How many references are needed, and how are they checked? What level of criminal background checks should be performed? What service will be used to do the checking? Similarly, what level of drug testing is needed, and will a credible lab be used? Will behavioral analysis tests be conducted? If so, is an industry-standard test being applied, or one created by the supplier? How will licenses and certifications be verified?
  • Also clearly state the evidence required to demonstrate that all screening has been completed. What documentation must be generated, and where will it be stored?
  • Will any screening activities need to be repeated? If so, which ones and with what frequency?
  • Give the staffing firm the mandate to conduct background checks on all the candidates they refer to you, and indicate when in the sourcing process each step must be completed. Should references be checked prior to candidate submission? Are criminal background checks and drug screens a prerequisite for assignment commencement? Set down the criteria for selection and rejection.
  • Establish your commitment to compliance by auditing the process and recording the findings. Let the suppliers know what steps you will take to verify that they have met all background checking obligations.
  • Reiterate that careful and appropriate use of criminal history information must be made, while ensuring consistency with Title VII as well as with the EEOC’s Enforcement Guidance. Regulations require an employer to differentiate between arrests and convictions, methods of gathering data, timing of information gathered in the hiring process and the relevance of a particular type of conviction to the specific job opportunity.
  • Ask for a thorough verification of the various criminal records and abuse databases for all those locations where the candidate claims to have resided, studied and worked. Check addresses where the candidate could have lived for long durations without a permanent address (for example, while pursuing his education). Verify that the supplier got the worker’s prior permission for the various background checks being conducted.
  • Be sure to screen again, when changing a worker’s assignment to a different one or when promoting the worker.

Finally, consider using a Vendor Management System (VMS) to avoid hiring a “Satterfield” worker. A VMS system will specify, by job order, the required screening activities, monitor completion of each action and flag any open items, provide a repository for associated documentation and provide an audit trail of all steps. It will issue reminders of upcoming renewal dates for certifications, licenses or rescreening. In this way, you have 360° protection against claims of negligent hiring while reaping the benefits of an extended workforce.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.