THE MAGAZINE

How to Avoid Hiring Mishaps

By Lester S. Rosen

A carpet cleaning firm in California hired an employee after only a brief interview. Shortly after he began work, the employee robbed and killed a client in her home. The victim’s husband sued the company. The case went to trial and a jury awarded the victim’s family $9.38 million in 2002. After an appeal by the company, the parties eventually settled out of court for an undisclosed amount.

Had the company conducted a criminal record check before making its hiring decision, it would have learned that the worker had recently been released from federal prison in another state for violent crimes committed 15 years earlier. That information could have saved the client’s life and helped the company protect both its reputation and its bottom line.

This case illustrates the importance of thorough preemployment screening. The process must, of course, be conducted within parameters established by state and federal laws, such as the Fair Credit Reporting Act (FCRA). Special care must be applied with regard to using criminal databases and credit reports, verifying education credentials, searching social networking sites, conducting international searches, and addressing the vetting of contract and temporary employees.

Criminal Records

Companies have to carefully consider how they obtain and apply information about criminal histories.

Obtaining information. For most jobs, private businesses do not have the legal right to search official FBI criminal records. Companies must, therefore, find other ways to obtain the information. Many criminal-history databases compiled from open sources are available today. These databases, which are not official FBI records, appear to be extremely valuable to employers because they give quick and relatively inexpensive access to millions of records and cover wide geographic areas.

There are several problems with such databases, however. First, their completeness can vary; not all jurisdictions are covered. Timeliness is another concern; these databases are subject to the vagaries of individual court clerks who have a lot of leeway about when and how they enter data into a computer system.

Thoroughness and accuracy are also problematic. Some authorities do not make dates of birth available to the database compilers, which can lead to a mix-up of records with people who share the same name.

In addition, in cases where individuals have gone back to court and received some sort of judicial relief, the old records routinely show up. Texas, for example, has a process of “deferred adjudication” that allows a consumer to obtain a court order setting aside a criminal matter in certain circumstances. However, if the criminal record is still in a database someplace, the supposedly quashed record may come back to life whenever the person applies for a job.

A related issue is criminal identity theft, where a victim’s identity has been stolen and a crime committed using his or her name. Even if the identity-theft victim goes through the laborious process of clearing his or her name, when historical data is reported from a database, such a person may be victimized once again. 

The FCRA attempts to minimize the occurrence or impact of these types of errors by requiring that one of two precautions be taken when information is gleaned from a database. The first is that the company conducting the search maintain strict procedures designed to ensure that the record is complete and current, which typically means going to the courthouse to verify facts before they are relayed to a client; the second is that the firm notify the consumer of the fact that public record information is being reported by the consumer reporting agency at the same time such public record information is reported to the employer.

The second option is often referred to as contemporaneous notice. The idea is that if a person is notified that the employer is receiving an incorrect record, then he or she would have the opportunity to immediately notify the employer and the screening firm. However, the contemporaneous notice provision has been a source of problems for employers.

The first problem with contemporaneous notice is that technology such as e-mail allows instant notification of results from background firms to employers, but the same instant notification is less likely to occur between the background screening firm and the job applicant with whom the firm has had no direct contract.

In 2008, plaintiffs won a $20 million settlement in a class action suit where the notification of negative information from a database search that was provided to an employer was not promptly given to the subjects involved. 

The other problem with contemporaneous notice being used instead of confirming information at the courthouse is that the screening firm cannot be sure the record is complete, up-to-date, and belongs to the job applicant. Some states are addressing this issue. In California, for example, contemporaneous notice is not allowed and a screening firm must verify the accuracy of the record before it is reported to comply with state law.

The bottom line is that while database searches can be used as secondary sources to supplement a courthouse search or to guide a courthouse search to the correct jurisdiction, they should not be used as a sole screening tool. And while FCRA doesn’t directly apply to employers doing the searches themselves, it behooves them to adhere to these best practices.

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