Employment Screening as a Risk Management Tool

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“A background check is a background check, right?” Not so much. Accuracy in employment screening is something every background check vendor preaches, but alarmingly few understand or truly accomplish. The most crucial concept to grasp is that it is simply not possible to achieve 100% certainty that you know absolutely everything there is to know about an individual when you hire them. Similarly, a thorough and comprehensive background check that reveals no adverse information cannot be considered irrefutable proof that some adverse information from that person’s past won’t crop up in the future. Why then even bother with employment screening?

The overriding answer is risk management. While uncommon, there are a number of legitimate reasons adverse information could be missed even though your screening strategy conforms to industry best practices. Conforming to industry best practices accomplishes the following components of risk management:

  • Maximizes the probability that existing criminal records will be found
  • Minimizes the probability that criminal records will be missed
  • Includes oversight to prevent erroneous or illegal information from being used or attributed to the wrong person
  • Provides validation/correction mechanisms for candidates who believe information has been reported in error
  • Ensures accurate and reliable information is used legally in your hiring decision
  • Provides a cost control mechanism so you do not incur unnecessary cost for unproductive resources

Hypothetically speaking, to achieve 100% certainty that you know everything there is to know about a job applicant you would have to spend the time and money to send a professional court researcher into every one of the 3,200+ county court jurisdictions across the country AND each of the many, many more municipal, town, and even village mayoral courts that process, store, and archive criminal records. The President of the United States isn’t even subject to such scrutiny (as far as we know)! Obviously this is not feasible from either practical or financial perspectives.

This all begs the question: What does risk management mean in the context of employment screening? While no one can predict the future, we can look at an individual’s past for potential predictors of future behavior. If there is an incident in your workplace or a crime committed by one of your employees, this is EXACTLY what plaintiff’s attorneys will do to try to establish negligence in your hiring process. We’ve established that there is no feasible way to be 100% certain you know every skeleton that might exist in your candidates’ closets. But if the unthinkable happens, you will be asked to demonstrate that you conducted reasonable due diligence in hiring the individual in question.

Best Practices

Industry best practices dictate that criminal history research be conducted in each county an individual has lived, worked, or attended school for the past seven years. The seven year address history is obtained through the credit bureaus via Social Security Number Trace, which also will reveal any alias names that have been associated with that SSN. The only thing you can reasonably do beyond this is order a nationwide criminal database check in an effort to identify any “vacation” criminal records that may exist, with the understanding that there is a significant chance that an existing record located outside a county of residence may be missed anyway.

Common Shortcuts

Shortcuts increase risk. It can’t be put any more simply than that. Statewide and nationwide criminal databases are the siren songs of the industry. They have a seemingly mythical power to make otherwise rational people think background checks are just that easy.

Statewide databases have two main drawbacks: 1) the vast majority of states cannot enforce participation and reporting from every county and court jurisdiction within the state; and 2) processing time to get information into the database once it is reported from the counties can take as long as several months. This means there are holes in the database to begin with, and timeliness issues for data that does get reported.

Regarding nationwide databases, most of the information is sourced from statewide databases, which are already flawed. Then there are several states that do not share any county-based felony/misdemeanor information to the nationwide databases. Multiple research studies have shown that the largest ‘nationwide’ criminal history databases typically cover less than 50% of county court systems across the U.S. Our own internal research study found only 20% of 651 randomly selected, known criminal records were found in a search of one of the largest and most reputable nationwide databases, and half of those contained information inconsistent with that in the true records.

Statewide and nationwide criminal database searches can be considered a reasonable attempt to identify “vacation” records that may exist in jurisdictions where the candidate has never resided. However, they are by no means exhaustive or comprehensive and will contribute precious little to risk management if utilized as the sole component of a criminal background check.

Additionally, be wary of any screening vendor that attempts to oversimplify the process, or claims they have ‘proprietary’ computer networks with direct access to criminal court records. In the vast majority of cases, these vendors are simply using online databases that lack oversight and create risk of missing records or attributing records to the wrong person (often they don’t include the necessary multiple identifiers such as DOB or SSN). There are a very few areas around the country where direct county criminal research is prohibited (New York Office of Court Administration, State of Colorado are a few examples), and in those areas a reputable company must use whatever tools are available. However, in all cases where available, ensuring accuracy and FCRA compliance requires a trained court researcher visiting the court directly and requesting additional case and docket information whenever necessary to positively identify the individual and current status of the complete record.

Bottom Line: Speed vs. Accuracy

A famous quote attributed to multiple sources states: “Speed is fine but accuracy is final.” Be wary of shortcuts and oversimplifications; this point cannot be overemphasized. Managing risk means observing best practices and applying them consistently throughout your company so you are protected in the event of employment litigation. Shortcuts ALWAYS negatively impact your ability to manage risk in the long run!

Rob Thomson is Communications Manager and Senior Account Executive for Cleveland-based EmployeeScreen IQ, a best practices provider of pre-employment screening services throughout the U.S. and worldwide. Rob can be reached at (800) 235-3954 ext. 438 or rthomson@employeescreen.com.

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