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April 24, 2012

Background Checks: Best Practices

Although there are no guarantees when it comes to hiring, employers can reduce liability by conducting thorough (and legal) background checks.  Employers can be found liable for an employee’s criminal actions through negligent hiring if the background check is not thorough.  On the other hand, employers who are too aggressive in their process could face discrimination lawsuits from disparate treatment, or disparate impact.

In creating a best practices checklist related to background checks, it is important to effectively balance the needs of all stakeholders in an organization, including potential employees.  Employers should consider the following:

• Job Descriptions/Analysis – Nature and details of responsibilities for each job in the organization are critical to discern what types of pre-employment checks are necessary.  The detailed job description also allows the applicant to make an informed decision as to his or her ability to fulfill the responsibilities of the position.

• Application for Employment – Every applicant must fill out the application completely in order to be considered for the position.  The application includes: certification the applicant is over 18; whether he or she can provide verification of the right to work in the U.S.; full information regarding education history*; full information for prior employment (including contact information); whether he or she has been convicted of a felony (along with a disclaimer that states conviction of a felony will not necessarily preclude employment)**; whether the candidate (with or without reasonable accommodation) can perform the duties of the job; signature of the applicant that certifies the information is true and any misrepresentation may result in failure to hire or dismissal from the position.

*Note that full education history need not include request for the years attended or year graduated.  This could lead to concern of possible age discrimination.

**Note that the word here is “convicted.” Do not make the mistake of using the term “arrested for.”  Courts have found this question to have a disparate impact.

• Consent Form to Permit Reference Check – The form should be signed by the applicant and “Release both the hiring employer and former employers from liability resulting from the ensuing exchange of information.” (Schloss & Lahr, 2008)  It should also be broad enough to allow for reference checking with all pertinent contacts: former employers, colleges/universities, community service organizations on the resume, etc.

• Checking References – The person checking references should inform the party that will give a reference that they are protected from civil liability when references are given in good faith.  Document all efforts to contact references, even if they are unsuccessful.

• Background Check – Utilize a third-party vendor to conduct all criminal background checks and consumer report requests.  Applicants must be given written disclosure that a background check may be requested, and must sign written consent.  If adverse action is to be taken as the result of information disclosed during the background check, the applicant must be notified of his or her rights as a result.

• Consistency and Proper Training – One of the best ways to ensure background checks are fair and complete is to train any individual who will be involved in the process on proper interview techniques and questions (regarding anti-discrimination) and for the process to be consistently applied to every applicant.

Reference

Schloss, L. M., & Lahr, J. G. (2008). Watch your back: Smart hiring and proper background checks. Employee Relations Law Journal, 34(3), 46-71.

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