BACKGROUND CHECKS Step by Step
Long, John W., Security Management
Criminal background checks require attention from the initial data collection through the final hiring decision.
With today's low unemployment rate, virtually every warm body is a viable hire, and employers may be tempted to lower their standards for applicant screening. But putting the wrong person on the payroll can open the door to work-related crime and violence, which are frequently followed by litigation, costly settlements, and the potential for financial ruin. Comprehensive criminal background checks give managers critical information for making the best hiring decisions. Careful attention to the application process, thorough knowledge of the judicial system, and awareness of compliance issues affecting criminal background searches are necessary to a screening program's success. The key components of the process are the initial data collection via the application, the subsequent background investigation, and the final hiring decision.
INITIAL DATA COLLECTION. Every successful background check begins with the collection of vital data on the employment application. To conduct the most thorough criminal search, the potential employer will want to collect as much information as possible, including the applicant's full legal name, date of birth, Social Security number (SSN), other names used, times and places of prior employment, and educational history.
This information will provide a solid foundation for the background investigation. While all criminal records checks require the applicant's full name and the period of time to be searched, each court and repository has its own data requirements. Many require additional identifiers such as date of birth, SSN, sex, race, and/or driver's license number. (Some of this information cannot legally be asked for on the application, as discussed later.)
Signed release. The application should also include a disclosure and release form authorizing a background check. The employer is required by the Fair Credit Reporting Act (FCRA) to have a signed release from the job applicant to conduct a background check through a consumer reporting agency, such as a background check vendor. Because some repositories for criminal records and courts require a signed release from the applicant before providing a report, it's a good idea to get this form signed even if the investigations are performed in-house. (However, if the check is performed by in-house employees rather than through a third party, the company is not subject to any FCRA requirements.)
The release should include language explaining the intention of the employer to conduct background checks and the types of searches that may be conducted. Employers might want to add a clause allowing additional investigations at any time during employment to protect themselves in case such an investigation is needed.
In addition, the FCRA requires that the application be accompanied by a consumer notification that explains the applicant's fights and states that background checks will be conducted. The combined disclosure and release forms should be separate from the application form.
What can be asked? Many employers, conscious of laws barring age, race, and sex discrimination, hesitate to ask on the application for all the identifiers necessary to ensure a successful criminal background check; these include date of birth, race, and sex. To ensure collection of this information, employers can incorporate requests for identifiers into background check releases, prefacing the requests with a disclaimer that the information will be used solely as identifiers for background checks.
But that disclaimer alone cannot protect the company from potential lawsuits arising from charges that this information was used discriminatorily. Nancy Pettus, vice president and counsel for human resources at First American Corporation, suggests that employers provide applicants with envelopes in which they can seal the completed disclosure forms. …