By: Patti Dunham, MA, MBA, SPHR and Debbie Hatke, MA, SPHR
We all know and understand the importance of background checks and references when we are ready to make the “hire”. No need to go there, right? Not only is “doing it” important but equally important is “how” you do it. As human resource and recruiting professionals, we have found that relying on just a criminal database may not give you a total picture of your candidate’s criminal background. To be effective recruiters with the sea of candidates we are seeing these days, we need to dig a little deeper but… how deep do we go? Do we do an online national check? Hire a third party to do national and local searches? Do we go even farther with an Internet search of our own that includes Google, Facebook, My Space, You Tube, and the like? Knowing and understanding the ins and outs of background checking today will help you to make a more informed decision and ensure you get the best information on your hire without subjecting yourself to a potentially legal situation.
Criminal Checks.
So what does a background check entail? Completing a background check includes researching a candidate’s consumer reports: driving records, education, criminal history and credit report. Of course you can check all or some of these but as an employer it is important to decide what your policy is and stick to it – for all candidates. It is too easy to end up on the wrong end of a discrimination claim because you performed background checks on some candidates and not on others. It is legitimate to vary the level of the background check based upon the position (i.e. conduct a credit report if the person is going to be handling money for the company) but be sure your decision is business-related to avoid a potential claim.
Many companies use a third party vendor to do these checks but some do try to do it on their own. Is it effective? What is the best route? Where do we draw the line? Employers today really have to dig a little deeper and go to the county records to find items that sometimes don’t make it to the national databases. It is important to check these records because sometimes these databases aren’t up to date with county or even state court records. We have also learned that some courts are diligent about reporting while others are, shall we say, a bit behind.
When considering criminal checks it is important to understand the legal obligations of such. The Fair Credit Reporting Act (FCRA) sets forth strict guidelines on how a candidate must give authorization to do the search, as well as how they are notified about the consumer reports used (especially when they are refused employment because of what is found in the check). Before obtaining the background check, employers must inform the candidate in writing of their rights (by giving them a Fair Credit Reporting Act Disclosure statement) and inform them that a consumer report may be used to determine their employability. They must sign this disclosure as well as a separate written release authorization to perform the consumer report investigation. A number of companies incorporate the release authorization into their employment application. Some consumer reporting providers prefer to have it as a separate document so that the candidate is well aware that a consumer report investigation is being performed.
Once the background check has been complete you aren’t done. If your background check comes back satisfactory and you hire the individual, no additional work is needed. However, if you pull consumer reports for a candidate who is ultimately not hired, you will need to notify that individual in a two-step process. FCRA stipulates if ANY of the information in the consumer report is a factor in your decision (even if it is not the deciding factor) you must provide the candidate with a Pre-Adverse Action disclosure that includes a copy of the candidate’s consumer report and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”. When you finally fill the position, any candidate who has been in consideration (has had a background check) and not chosen, needs to be sent an Adverse Action letter notifying them of the decision. The letter needs to include: the name and address of the consumer reporting company that provided their consumer report(s), a statement that the reporting entity did not make the “adverse” employment decision, and provide the candidate with their rights to dispute the information and how they can obtain a copy of a free credit report. This information must be provided to the candidate, even if the information in the consumer report wasn’t negative. The regulation also stipulates that the candidate needs to be notified once the position is filled.
Bottom line here? Carefully choose at what point in the employment process you wish to conduct a background check. Many employers will wait and perform it on the final few candidates, some only perform it after they have selected the final candidate. With the FCRA requirements, it is important to keep that in mind when determining your process.
Social Media.
So, you have done your traditional background check and your candidate has a “clean” background. But you aren’t sure this is really the “one”. What else can we do? We tried the individual’s listed references – they all stated the candidate was “perfect” (surprise!). Now what? Who hasn’t used a search engine or a social networking site (like Facebook) to do their own “background check” on a candidate? Well, according to a 2009 article by Marketwatch.com, 40% of employers have searched Facebook or other social networking sites for information on potential hires. It further stated that 80% of the employers then factored that information into their hiring decisions. Is it right? Is it wrong? Are we invading the candidate’s privacy?
Using the internet may lead to valuable, non-discriminatory information about a candidate but you will need to weigh the risks and benefits of such a search. Reading a candidate’s Facebook page or watching them in a You Tube video may reveal something about their personality but it can also open you up to some significant legal liability and potential discriminatory hiring practices. What if you learn your candidate is very “vocal” for a certain ethnic cause or you learn your candidate has been cancer- free for three years? Worse yet, what if you learn something about them only to find out it was a DIFFERENT John Smith? Employers have to be aware of the potential federal and state discrimination claims as well as (and this is for the lawyers to fight out) invasion of privacy claims.
With traditional background and criminal checks, candidates have the legal protection of the Fair Credit Reporting Act to ensure they are treated fairly during the employment practice. It does not appear (again, a fight for the lawyers, not us) that FCRA applies to information received via social media sites. There are of course other protections. For example Facebook’s terms and conditions of use state that the site can only be used for “personal and non-commercial” reasons. Is conducting an employment background check a commercial use? In addition, some states prohibit denying a job because of “off duty” conduct that is not illegal unless the employer can show a direct link between the behavior and the job responsibilities. So, if you deny someone a job after viewing a You Tube video of them guzzling beer at a party in their underwear, it could be discrimination. You may feel the behavior is inappropriate and doesn’t represent your company the way you would like but the behavior is not illegal – inappropriate, maybe; illegal, no.
So, what do we do?
Background checks are essential; how far we go to conduct those checks is an organizational choice. National databases, a third party to do national and local checks, social media, all options today to ensure our hire is “the one”. Be sure that as a company you have established consistent policies and procedures on the background checks and stick with it. Weigh your risks and be aware while making the decision to move ahead.
Patti Dunham, MA, MBA, SPHR and Debbie Hatke, MA, SPHR are with strategic HR, inc. (http://www.strategicHRinc.com). If you have any questions or would like to share your comments with Patti or Debbie, you can contact them respectively at: Patti@strategicHRinc.com or Debbie@strategicHRinc.com.
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