Implementing a Background Screening Program

 Background checks are useful tools for employers in hiring and promoting the most qualified individuals. They can help identify and screen out those candidates who have given inaccurate information on employment applications, or who might present a risk of violence or theft in the workplace.

For employers new to the screening process, there are some things to consider before the full implementation of a background screening program can take effect. First, a formal policy on background checks must be created. In drafting a screening policy, employers should consider the types of positions warranting background checks, the process for screening existing employees, and the types of information they wish to collect. In order to answer these questions and create a legally defensible screening policy, employers should adhere to the following steps:

1. Identify “sensitive” positions. Employers need to first identify positions or job duties deemed “sensitive”, or those that otherwise have the potential to threaten the security of the company, its employees, or its customers. Positions of sensitivity may include those that require the handling of important company information, exposure to confidential issues, the care of others, or access to company property or other proprietary information. The bottom line: employers need to have a legitimate business reason to conduct background checks. It is important to note that in some cases, background checks may actually be required by state or federal law. Most states require criminal background checks to be conducted on anyone who works in the securities industry or those who work with children, the elderly, or the disabled.
2. Determine the process for screening existing employees. It is recommended that in order for a screening program to have value, employers need to screen their existing employees as well. Employers should screen current workers who are performing duties deemed as “sensitive”. Additional circumstances in which screening existing employees is necessary are when: (1) it is required by state or federal law; (2) position responsibilities change, resulting in the position being designated as “sensitive”; or (3) the employer learns of a felony conviction or other offense that adversely affects one’s ability to perform the job or has an adverse effect on the company if employment is continued.
3. Determine the types of information you will collect for each position. Information sought in a background investigation should be job-related; therefore, the type of background check an employer conducts depends on the parameters of the position. Some things to consider before determining the appropriate type of background check to conduct include the following: How often will the position’s duties require exposure to company funds? Will the position require the operation of machinery or the driving of a vehicle? How many years of education or experience are required for the individual to be successful in their role?
4. Establish time-frames. It would be unrealistic to run a background check on every applicant at the initial stage of the hiring process. It is recommended that a background check be the last step, after other means of weeding out candidates has been exhausted (i.e., resume and application review, phone screening, interviews, and reference checking). Ideally, employers should wait to run a background check until they are ready to extend a job offer. And in this case, the offer should be made conditional pending the results of the background report.
5. Determine offenses considered disqualifying. Employers need to determine what offenses will result in an automatic refusal to hire. And sometimes the offenses themselves are not the only things to consider when making an employment determination. The length of time that has passed since the conviction, the number of convictions an individual has on his or her record, the relationship between the job to be performed and the crime(s) committed, and his or her subsequent employment history should all be taken into consideration when determining ones eligibility for employment. To refuse or discharge employment based on a criminal conviction, the employer needs to determine if the conviction is job-related. The employer bears the burden of proving that the specific job requirements justify denial of employment.
6. Establish adverse action procedures. When a background check reveals a criminal history or other negative information, employers may decide to take adverse action. Taking adverse action typically means not hiring, or not promoting someone based on the results of a background check. When negative information is discovered, provide applicants and/or employees with an opportunity to explain any potentially damaging or negative background information. Next, complete a Preliminary Notice of Adverse Action form, which is intended to inform employees or applicants that based on the information found in their background check, a preliminary decision has been made to deny the applicant employment, or to terminate the employee. Once a final decision has been made not to hire or promote the individual, a final notice to the applicant or employee should be given in writing.
7. Apply the process consistently. The single most important aspect of implementing a screening program is consistency. Employers must never conduct background checks on a selective basis; all similarly situated applicants must be treated the same. In the event you are confronted with a negligent hiring lawsuit, the reliability of your screening process and how consistently you’ve applied it will be put under scrutiny.
8. Ensure confidentiality. Employers must maintain the confidentiality of all background check information. Train all professionals that will be handling or reviewing background check information in the importance of preserving its confidentiality. In addition, keep all records under lock and key at all times.

Pre-employment screening promotes a safe work environment by reducing the risk of a bad hire. With an increase in negligent hiring, escalating recruitment and training costs, and an upsurge in workplace violence and theft, employers need to seek as much information as possible on prospective employees. However, in doing so they must be sure not to overstep their legal bounds. A published policy on conducting background investigations should reflect the employer’s effort to balance its “need to know” with employee privacy rights.