There’s No Room for ‘Maybe’ in Background Checks | DCR Workforce Blog

There’s No Room for ‘Maybe’ in Background Checks

‘Maybe’ is possibly the most popular word in the English lexicon because it is not just a word – it represents a whole philosophy of life! When making a decision, we have three options, not two. We have Yes, No and we also have – Maybe! Smart people (like my son, who opened my eyes to this word and its significance) realize that everything is not black or white so they just stick with “Maybe” – “So, are you signing up for that course in German you wanted?” “Maybe!” “Will you go watch the ‘Desolation of Smaug’ at the multiplex with us this Saturday?” “Definitely, maybe!”

Exasperating? Not really. Many times, we are surrounded in life with in situations where taking an unequivocal stand proves extremely challenging and “maybe” seems like a great way out.

Of course, not all situations can – or should – be avoided with such a vague response. When deciding whether to conduct background checks on employees, we had better not take any stand which will have us repent in leisure later. While the notion of conducting background initially seems straightforward, we soon start to consider the trade-offs between the privacy of the individual and the employer’s need to reduce business risk. This confusion grows when considering they types of background checks to conduct, the degree of intensity to apply and what to do with questionable results. Take a closer look at the various types of background checks available to employers:

  • Cyber or online vetting may prove efficient, quick and inexpensive. A hitch here, of course, is that the vetting process could reveal information about race, color or national origin, violating protections under the provisions under Title VI of the 1964 Civil Rights Act. The regulatory controls on the use of social media background checks are still evolving, but an employer has walk a fine line between violating civil rights by learning too much about a candidate and possible charges of negligent hiring if a social site wasn’t checked that could have raised a possible red flag by sharing any criminal intent.
  • The free web-based E-verify system enables the verification of the legal work authorization status of newly hired employees; but is governed by an increasingly complex and confusing web of laws and regulations with regard to its proper use.
  • Conducting criminal background checks for all applicants is frowned upon by EEOC, which wants the box to be banned. The alternative could be charges of negligent hiring – so it is again a tough choice. Employers must ensure that when criminal background checks are conducted, the only results that are taken into consideration are those which directly relate to and could possibly impact the creation of a safe work environment.
  • Credit report checks are not meant to be conducted without the permission of the applicant, and only if the responsibilities of the job require it. Many states have laws restricting their use. As we consider filling positions with resources that will work remotely, we must account for situations in which some candidates will be subjected to credit checks, while others would be excluded. Will that lead to situations in which employers will dismiss – out of hand – any candidate from a state that places restrictions on credit checks?
  • Employers need to make sure that an applicants’ creativity does not extend all the way to creating false academic credentials for themselves. The frequency of falsified academic degrees or prior work history is becoming a major concern which cannot be easily assuaged by a cursory verification of candidates’ LinkedIn profiles. Many companies go beyond business references to verify prior work history, contacting prior employers. However, as companies become increasingly risk adverse, many have adopted policies in which they will only indicate the start and end date of the worker, providing no information on the quality of performance or whether the prior employer would consider the worker eligible for rehire.
  • When collecting personally identifiable information about candidates, the employer is legally required to make sure that the information is protected. Employers must ensure that the information is shared with others on a “need to know” basis only, that it is stored in a manner that guarantees that does not lead to criminal activities such as identity theft and that the employer does not violate information protection laws.

When using a staffing agency to secure temporary workers, companies must take additional steps to protect their business interests. As the Employer of Record, the staffing company holds the responsibility to conduct all background checks on the contingent workers hired. If you do so, you open your company up for co-employment claims. So how do you ensure that your interests are served?  In negotiating with each staffing agency, specify the background checks that must be conducted, and the ways in which results will be communicated to you. Reserve the right to request additional background checks for specific positions (e.g., the OIG exclusion list should be checked for all healthcare candidates). Specify which background checks need to be periodically repeated. Agree on the agencies to be used to conduct each background check, and require proof of their qualifications and accreditations. Finally, be clear on who is going to pay for each background check. While most background checks are relatively inexpensive, prices can vary as more in-depth checking is required.

With an up-front understanding of the approach to be used by staffing agencies in background checking, employers will feel more confident when moving from “maybe” to a clear “yes” or “no”.

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.