By Lester Rosen
Nov. 2, 2001
The follow is a review of your hiring and policies.
I. Preliminary Steps — Training Policy and Procedures
Organizational responsibility for safe hiring
Is there a position in the organization specifically responsible for safe-hiring practices?
Is that position centralized in HR or Security, or decentralized in hiring departments?
If decentralized, are there policies and procedures in place for uniform procedures across the organization, review and audit of performance, and training?
Is the responsibility for safe hiring part of a periodic review?
Policies and procedures in place
Is there training for hiring managers, HR, etc.?
How is the training conducted?
Frequency of training?
How is training success monitored and measured?
Who analyzes, implements, and evaluates the training program?
Auditing of safe-hiring practices
Is there an audit procedure to ensure safe-hiring practices are followed?
Where is the completed audit information maintained?
How frequently does auditing occur?
Who conducts the audit process?
Procedure to ensure hiring mangers follow plan for each hire (See attached checklist)
Communication of policies and procedures
How is the company’s policy communicated to the workforce and managers?
How frequently is the information communicated?
II. Placing Applicants on Notice before Hiring Process Starts
Procedure to Place Applicants on Notice (Goal–to get maximum advantage from safe hiring by discouraging applicants with something to hide from applying in the first place).
Is there notice in the job announcement, bulletin, classified advertisement, Internet site, etc.?
Is there a notice on the application form that a prospective candidate receives?
III. Application Stage
Does the firm use an application form?
(Note: Use of an employment application form is considered a best practice. Resumes are not always complete or clear. Applications ensure both uniformity and that all needed information is obtained, prevents employers from having impermissible information, and provides employers with a place for applicants to sign certain necessary statements.)
Does the application form have all necessary language?
Broadest possible language for felony and misdemeanor convictions and pending cases. (This helps discourage applicants with something to hide and to encourage truthful applications. One of the biggest mistakes employers make is to only ask about felonies on an application form. Employers may inquire about misdemeanors to the extent allowed in their state.).
Statement that criminal records do not automatically disqualify.
Statements that lack of truthfulness or material omissions are grounds to terminate the hiring process or employment no matter when they are discovered. (This is particularly important if a criminal record is found. Under current law, a criminal record may not be used automatically to disqualify an applicant unless there is a sound business reason. However, if an applicant has lied about a criminal matter, the falsehood can be the basis for an adverse decision.)
Statement that employment is at will.
Release for references and other background materials
Other standard statements (e. g. no discrimination, mandatory arbitration, etc).
If the firm does not have a formal application process, is there a supplemental form that contains the language in section nine above?
Does firm require a release for a background check in the application process?
(Note: Have each job applicant sign a consent form for a background check, including a check for criminal records, past employment and education. Announcing that your firm checks backgrounds may discourage applicants with something to hide, and encourage applicants to be truthful and honest about mistakes they have made in the past.)
If using an outside background screening service, does the firm have a separate form as required under the FCRA?
Does application or form provided by a screening service request listing of all past addresses for seven to ten years? This is also needed for a criminal search.
(Note: Include future screenings in the consent language. This becomes important if a future investigation is required for some form of workplace misconduct.)
IV. Application Review Stage
In reviewing the application, does firm look for the following seven (10) critical factors?
Applicant does not sign application.
Applicant does not sign consent or background screening.
Applicant leaves criminal questions blank (the honest criminal syndrome).
Applicant self-reports a criminal violation.
Applicant fails to explain why he or she left past jobs,
Applicant fails to explain gaps in employment history.
Applicant gives an explanation for an employment gap or the reason leaving previous job that does not make sense.
Excessive cross-outs and changes.
Applicant fails to give complete information (i.e. insufficient information to identify a past employer, leaves out salary, etc).
Applicant failed to indicate or cannot recall the name of a former supervisor.
In reviewing applications or resumes, does firm look for employment gaps?
(Note: It is critical to verify past employment to determine where a person has been for the last 5-10 years, even if you only get dates and job titles. Look for unexplained gaps in employment. Generally, if you can verify that a person was gainfully employed for the last five to ten years, it is less likely the person spent time in custody for a serious offense, although this does not eliminate the possibility of lesser offenses.
In reviewing applications, does firm examine reasons for leaving each job?
V. Interview Stage
Are interviewers trained in legal compliance:
Treating all applicants in a similar fashion
Questions that may not legally be asked (i.e. questions that are discriminatory or prohibited by law)
How to respond when an applicant volunteers information that an employer may not ask about or possess
Statements that an interviewer should not make to an applicant, such as promises about the job
Uniform note taking and record keeping procedures (e.g. do not make notation on resume)
In interviews, are certain key questions asked that are designed to ensure honesty and integrity?
(Note: Towards the end of an interview, advise applicants that the firm will perform a criminal background and reference check as a standard business practice, and ask whether the applicant has any concerns to share. Good applicants will shrug off the question, while applicants with a problem may either reveal something or withdraw. Applicants should also be asked during an interview what they think a former employer will say about them. For example, “If we were to contact past employers, how would they describe your job performance?” Since applicants have signed releases and have been told such checks may occur, they may be motivated to reveal information about past jobs.)
VI. Background Investigation Stage
Does firm check references?
(Note: Verifying past employment is one of the single most important tools for an employer. Past job performance can be an important predictor of future success. Some employers make a costly mistake by not checking past employment because they believe past employers may not give detailed information. However, even verification of dates of employment and job titles are critical because an employer must be concerned about unexplained gaps in the employment history.
In addition, documenting the fact that an effort was made will demonstrate due diligence. Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.
It is also important to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense. Finally, documenting an attempt to obtain references can demonstrate due diligence.)
Does firm take any other steps, such as checking court records, or outsourcing to a background firm?
(Note: If outsourced, the Fair Credit Reporting Act (FCRA) applies. If background screening is done in-house, the investigation falls under rules governing privacy rights of employees.
Before outsourcing to a third party service provider, has firm taken the following into account:
Expertise/knowledge of the service provider.
Legal compliance–There are numerous issues surrounding legal compliance. A screening service must understand the laws surrounding pre-employment screening and hiring, and make a commitment to provide an organization only with information an organization may legally possess. An outside firm should also be able to provide FCRA compliance.
Personal service and consulting–It is critical to keep in mind that pre-employment screening is much more than just providing raw data. A screening company should be able to assist the human resources department in the same manner as any other consultant.
Training/consulting services available.
Internet order/reporting options.
Mechanics of the screening process
Is there a specific person in change of mechanics of the screening process?
Process to send requests to screening company and to track progress.
Determination at what stage in hiring process is screening is conducted (not all applicants are screened–typically only the finalists are subject to screening).
Determination of the degree of screening for types for position (not every position needs to be screened at the same level).
Uniform screening procedures (are similarly situated applicants treated the same i.e. no discriminatory practices).
Privacy protected in the manner reports are transmitted to employer.
Policy that only persons in organization with proper authority will review the report.
Policy concerning storage of background reports (should be stored separately from personal files).
VII. Analysis of information stage
If negative information is located, is there a policy or procedure to follow?
Policies — are there written guidelines to follow?
Documentation — are all procedures and decisions documented to file?
Review — is there a review process, with a particular person in the organization in charge of the process?
Uniformity — are similarly situated applicants treated the same?
Privacy — is there a mechanism to ensure that information remains private and secured, and only appropriate decision makers view the information (i.e., reports with negative information are not sent through office mail to a hiring manager’s desk)?
Legal compliance — If a third party obtains information under the FCRA, is there a procedure to ensure pre-adverse action and post-adverse letters are handled as required by law?
If the negative information is a criminal record:
The firm understands and follows the Equal Employment Opportunity Commission rules concerning the use of Criminal records. Under EEOC rules, an employer may not deny employment to an ex-offender unless it is a business necessity, determined by reviewing the following three (3) factors:
the nature and gravity of the offense;
the amount of time that has passed since the conviction or completion of sentence.
the nature of the job being held or sought.
Be aware if your jurisdiction has a prohibition on considering arrests not resulting in convictions. (If your jurisdiction allows consideration of arrests, then an employer must independently verify the underlying behavior and may not use an arrest all by itself as an indication of lack of fitness. The critical inquiry is the behavior, not the police action.)
That the firm has independently verified the nature of the offense and has not merely taken the word of the applicant at face value or relied upon the information in court records solely.
(A Court record all by itself may be insufficient to determine the true nature and of the offense, since the final outcome could have been influence by a plea bargain or some other resolution not reflecting the true behavior. A firm should attempt to verify the true nature of offense by contacting or at least attempting to contact a person in authority, such as parole/probation officer, police officer, and prosecuting attorney).
The firm has conducted additional due diligence to discover if there are other offenses in addition to any that are self-reported. (Just because an applicant self-reported an offense does not eliminate the possibility of other offences the applicant did not report).
Did the applicant lie in the application and fail to disclose a criminal record in response to a direct question. (Note: this is the reason why it is important for an application to ask the broadest possible permissible question about a criminal record, and to advise applicants that any dishonesty is grounds to terminate the hiring process or employment. If an applicant lies about a criminal record, then the reason to deny employment can be on the basis of a false application.)
If a firm makes a decision to hire someone with a criminal record or some other negative finding:
The firm has examined the type of support, supervision and or structure that may be needed for the individual to improve the chances of success with the organization (i.e. that the firm is proactive in taking steps to reduce any potential difficulties)
The firm has considered the nature of the job and the circumstances of the past offense, in order to take appropriate measures to protect the firm, co-workers and the public from harm. This involves a determination of whether the particular job is a good fit for the ex-offender in view of the nature of the job and the nature of the offense. (For example, a person with a history of theft, may not be a reasonable fit for a position that involves access to cash, assets, or confidential information. However, that person may be well suited to a number of other jobs within an organization.)
If firm begins employment before the background check, is there a conditional offer to the applicant?
(Note: If employment begins before a background check is completed, state in writing that employment is conditioned upon receiving a report that is satisfactory to the employer.)
VIII. Post-Hire stage
Have documented policies and procedures that recognize a firm has a legal obligation to continue due diligence even after a person is hired. A firm can be liable for negligent retention, negligent supervision, and negligent promotion.
Have policies and procedures to govern post-hire workplace situations (Timely and attentive management of potential problem situations along with appropriate follow-through and documentation are the keys to avoiding legal claims of negligent hiring/supervisor)
Does employer have policies and procedures concerning workplace misconduct?
Does the firm conduct periodic performance reviews of workers that include issues related to workplace conduct?
Are supervisors trained to recognize, report and deal appropriately with workplace misconduct?
Are supervisors periodically trained and educated regarding the employer’s liability for negligent retention, supervision or promotion?
Is there a procedure to investigate workplace misconduct?
Is there a mechanism for workers or managers to report and record workplace misconduct?
Is it part of written job descriptions for supervisors to record, report and address workplace misconduct?
Is compliance with the duty to record, report and address workplace misconduct part of the periodic performance appraisal of supervisors, so that they understand that they are evaluated in part upon monitoring workplace misconduct?
Is there periodic training on workplace violence, so that supervisors are aware of the importance of prevention and signals to watch for?
©Lester S. Rosen, Employment Screening Resources, 2001. Version 1.7.
The information contained here is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.
We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline. Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps.
HR AdministrationClawback provisions: A safety net against employee fraud losses
Summary Clawback provisions are usually included as clauses in employee contracts and are used to recou...
clawback provisions, human resources, policy
HR AdministrationA guide to accurate and comprehensive payroll reports
Summary Payroll reports are documents that provide companies with insights into their payroll activitie...
payroll reports, payroll system, time and attendance management
Employee EngagementWork-life balance statistics you need to know to build a happier workforce
Summary US workers are working longer hours and spending less time on themselves than their OECD counte...
employee engagement, work-life balance, workplace statistics