Conducting background screening and having a sensible screening program are not the same thing. Whether you are new to screening or want to move from “screening” to “sensible screening,” it is important to understand five fundamentals of employment screening.
- Not all information is available instantly. Despite online offerings to the contrary, a quality background check will generally take one to three business days to complete and, in some cases, longer. The U.S. Federal Fair Credit Reporting Act (FCRA) requires a screening company to “follow reasonable procedures to assure maximum possible accuracy.” This means searches must often be conducted at the source, such as a school, courthouse, state licensing bureau or a previous employer.
- National criminal databases are not definitive sources. Commercial (non-governmental) databases are often advertised as “national,” but this is a misnomer. These databases are developed by purchasing criminal records from numerous sources and using techniques like screen scraping and web harvesting to capture records. These massive databases often contain up to a half billion records. They do not contain all criminal records in the U.S., because some sources will not sell a copy of records or allow records to be captured. Additionally, records within the database may be incomplete or not reflect the current record status.
- Most employers are not permitted to access FBI criminal records. FBI records are not available to the general public or most employers. Access requires a legal or regulatory basis, such as a state law requiring an FBI criminal check for school teacher qualification. And although often referred to as the “gold standard” of background checks, according to the U.S. Department of Justice, FBI records frequently provide arrest information but lack a disposition.
- The subject of the background check is part of the process. Per the FCRA, the subject of the background check must know about and authorize the background check before it is requested from the screening company. The subject has the right to a copy of the report and must have an opportunity to dispute inaccurate information in the report before an employment decision is made.
- Employment screening is heavily regulated. Federal, state and even local law govern the preparation and use of background reports when prepared by a third party, like an employment screening company. These laws and regulations are applicable even if the background report contains only public record information, such as criminal records.
Crafting a Screening Policy
Given those fundamentals, a sensible screening program begins with a well-crafted, written screening policy. This policy forms the backbone of the program by defining processes, operating parameters and ownership. Most policies should include:
- Statement of purpose. This statement explains why the organization conducts background checks. Reasons commonly cited include protection of employees, customers, assets and company brand, as well as helping to ensure the best possible hires.
- Ownership of program. The position responsible for the background screening program is identified. Typically, this is the highest level position in human resources or security. In smaller organizations, responsibility may be held by the general manager or even the company president.
- Legal compliance. This is a statement of the organization’s commitment to comply with all applicable law and regulation in the screening process.
- Security and privacy. The policy addresses security protocols, such as transmission of the subject’s information only by secure means and limiting distribution only to those with a bona fide business purpose. The accompanying privacy statement speaks to securing the background check file within the organization and limiting access.
- Team members subject to screening/rescreening. This part of the policy identifies workers who are subject to screening and rescreening. Typically, all employees, senior leaders, independent contractors and temporary workers are screened prior to start date. Additionally, any individuals with unsupervised access to company facilities, such as cleaning or maintenance workers, are subject to screening.
If rescreening is conducted, it should be included in the policy. Rescreening is becoming increasingly common, and examples include an annual or bi-annual criminal record check for all workers or an annual driving record check for workers who drive while on company business.
- High level description of process. This description should disclose whether background checks are conducted through a third party. Common processing points identified are candidate disclosure, candidate authorization, submission of candidate information, ordering of background check, receipt and adjudication of results, notification of potentially disqualifying results, opportunity to dispute and correct information, individualized assessment and the final employment decision.
- Background screening packages. This typically begins with a statement that the scope of the background check will vary by position, background check components are pre-determined by position, and components are limited to those areas relevant to the position being filled.
- Authorized users. This statement defines, by position, individuals who are authorized to order a background check, order optional checks, view results or participate in any other way in the screening process.
- Adjudication of results and individualized assessment. This statement defines the position/s in the organization permitted to view potentially disqualifying results and, per EEOC guidance regarding the use of criminal records, conduct an individualized assessment. Individualized assessment is often conducted by a single person who is well versed in background screening compliance or a small group with representatives from human resources, security and legal.
- Monitoring and program audit. This describes the importance of ongoing monitoring and periodic audits to maintain program integrity. It identifies the person/s responsible for this activity, as well as the frequency and scope of audits conducted.
Selecting a Screening Partner
Concurrent with policy development, employers need to select a qualified screening partner. As part of the selection process, most screening companies will demonstrate their online system and candidate portal, explain options available to employers, describe security protocols, discuss implementation services, and more. Although services vary by screening company, providers often assist in defining screening packages, identifying authorized users and appropriate permissions, finalizing documents used in the screening process and training users.
A sensible screening program is also a defensible screening program. Employers should consult with legal counsel and partner with a qualified professional background screening company.
For additional information, see parts one and two of this series, What Is ‘Compliance’ and Is It Really That Big of a Deal? and The Impact of Poor Compliance On Your Organization.
Mary Poquette is the Owner and Principal Consultant of Poquette Screening Solutions, LLC and a 20-year veteran of the background screening industry.