What is the liability associated with not screening employees?

Negligent hiring is a legal theory that states that employers can be held liable for the unlawful or improper actions of their employees if it can be shown that they failed to make “reasonable” inquiries into the employee’s background and suitability for the position. Most negligent hiring lawsuits allege that an employer failed to conduct appropriate research, such as a criminal record history or employment verification, that would have disclosed the employee’s past misconduct. Under the theory of negligent hiring, the employer could be found negligent for putting a person with criminal or other inappropriate behaviors in a position where they could pose a threat to coworkers, customers or the general public. If the employer knew, or should have known, of the risk presented by the employee, the employer can be held liable and may be subject to substantial financial penalties, including both actual and punitive damages, which can reach hundreds of thousands or even millions of dollars.

What services should we include in our pre-employment screening program?

That depends on the objective of your company or organization. If you’re only concerned with avoiding liability, a minimal search that would be considered a “reasonable” inquiry by the judicial system, would help protect the company in the case of a negligent hiring lawsuit. Accutrace recommends the minimal search include, at the very least, a social security trace and criminal record search.

If you want or need to dig deeper than liability protection to determine the integrity and capabilities of applicants, the screening process will be more extensive. Depending on the various positions within your organization, you may want to request specific services based on job classifications. For example, in addition to the minimum recommended for all positions (a social security trace and criminal record search), you may want to request a credit history report for an accountant position or a driving record history for a delivery position. Accutrace can help you develop a screening program that meets your specific needs.

What is the Federal Credit Reporting Act (FCRA) and how does an organization comply?

The Fair Credit Reporting Act is a federal law that regulates entities who are in the business of providing reports on consumers’ credit standing, character and reputation (consumer reports). It should be noted that the Act has been expanded to regulate not only credit reports, as the name would suggest, but information derived from public records associated with consumers’ criminal records and civil litigation histories as well. (In fact it would be more appropriately named the Fair Credit and Employment Reporting Act.)

Before initiating a background check, an organization must notify the applicant in writing that a background check is being requested, and must obtain a written consent from the applicant. The organization must also provide a written statement informing the applicant of his or her right to request additional disclosure in accordance with the FCRA.

If the organization plans to deny an applicant based in whole or in part on negative information received from a background check report, the organization must:

  • Notify the applicant in writing that derogatory information has been found by the consumer reporting agency and provide the applicant with a copy of the report and a “Summary of Rights” under the FCRA.
  • After giving the applicant reasonable time to dispute the background check, the organization must provide the applicant with a written formal denial, known as an Adverse Action Letter.

For a copy of the FCRA, please go to: http://www.ftc.gov/os/statutes/031224fcra.pdf

Can background screening be considered discriminatory?

If you maintain a clear, written, uniform policy you should be able to refute most discrimination claims. In addition, any organization conducting background screening must be aware of the guidelines the Equal Employment Opportunity Commission (EEOC) has mandated for the use of criminal records. The EEOC and other state legislation restrict the use of background information by an employer. Under EEOC guidelines, you may not automatically disqualify an applicant with a criminal record. Before making the final hiring decision, you must take into account several factors, such as the nature of the offense, how long ago it took place and the position for which the applicant is applying. Not taking these factors into consideration may result in a claim of discrimination and EEOC scrutiny.

Does Accutrace provide services nationwide?

Yes, we serve clients nationwide and internationally.

How long does it normally take to get reports?

Many results are returned in about 24-72 hours. Some are instant. Occasionally searches may take longer due to circumstances outside of our control, such as court delays or an uncooperative previous employer.

Why should I use a social security trace?

A social security trace is a great first step in developing a comprehensive background check. It’s a cost-effective tool that identifies an applicant’s address history and discovers any aliases they may have used in the past. Using the address and name history provided in a social security trace discourages applicants with something to hide.

Why should I verify education for my candidate when my candidate supplies me with a copy of their diploma?

Educational history can be falsified on an application or resume. Some estimates place the incidence of resumes containing erroneous education information as high as 30 percent. Unfortunately, many people purchase a false diploma from a diploma mill.

What is a “diploma mill?”

With access to the Internet, the proliferation of so-called “diploma mills” is on the rise. These services make it possible for anyone to “earn” the appropriate certification or degree based on how much they are willing to pay. Often these “institutions” base their service on the philosophy that people should be able to use their “relevant knowledge” and life experiences to earn a degree. These are not accredited educational institutions but rather a for-profit service.

What is the difference between federal and national searches?

These are easily confused. Neither type of criminal search is perfect or comprehensive. But each serves a different purpose. Federal criminal searches can take place in single or multiple federal districts across the country. The types of criminal records stored in these locations are related to federal offenses including crimes that crossed state lines, white collar crimes, etc. There are far fewer federal records than county courthouse records and the odds of finding a federal record are lower than a county record, although when a record is found it tends to be serious. National criminal searches are attempts at consolidating criminal records from any counties that will provide records to database owners/managers. These records generally are felony and misdemeanor related, are partial or full records that you would find at the courthouses themselves, and may or may not be updated recently.

How is the cost for background checks justified?

There are a number of ways to look at the how background screening is cost-effective.

It eliminates the cost of negligent hiring and negligent retention law suits. The cost of these lawsuits not only includes your legal bills, but staff time to prepare for these situations. The cost of conducting background screening is a very small percentage of the amount you would spend in lawsuits.

It helps prevent violence in the workplace. Again, the cost of conducting background screening is much lower than the cost of a personal lawsuit and production disruption due to violence in the workplace.

What is Form I-9/E-Verify and how does it effect employers?

The Immigration Reform and Control Act (IRCA) of 1986 legally mandates that U.S. employers verify the employment eligibility status of newly-hired employees. Employers who knowingly hire or continue to employ unauthorized workers are subject to steep fines. Although most employers attempt to comply they unknowingly accept I-9 forms that have been completed incorrectly or fraudulent supporting documents. Recently the government has dramatically increased its enforcement and many well-meaning employers have been saddled with significant fines, often in the millions. Accutrace’s electronic I-9/E-Verify management system streamlines I-9/E-Verify compliance, making it practically foolproof to complete and collect forms, store forms and audit forms.

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