Steps to Follow When Making an Adverse Employment Decision

 

On occasion, employers must make the difficult decision to withdraw a job offer or terminate employment based on the results of a background check report. As a best practice and to fully comply with local, state and federal laws, the following steps are recommended.

Making an Adverse Employment Decision
Determine whether the criminal record or discrepancy in the background screening report will present an unacceptable business risk or impact the person’s ability to meet the expectations of the job. Consider the relevancy of the crime to the job requirements, for instance a “driving while intoxicated” violation may have no impact on an office job where driving is not required. Review the severity of the crime, such as misdemeanor versus felony and; the time that has passed since the crime was committed (e.g.,1 versus 15 years ago).

Individualized Assessment
Once a decision has been made to withdraw the job offer or terminate employment, it is best to contact the person as quickly as possible. Let them know the results of the background screening report, and give them the opportunity to explain any perceived discrepancy. If there is evidence that there is erroneous data in the report or other mitigating circumstances, tell them you will re-evaluate the data. If the report is accurate, state that you will be withdrawing the offer or terminating their employment.

Pre-Adverse Action Notice
Let the person know that you will be sending them a pre-adverse action letter. This will give them the opportunity to contact First Contact HR directly if they believe the background screening report is incorrect. This letter will also provide them with a copy of the background screening report, and a summary of their rights under the Fair Credit Reporting Act.

Adverse Action Letter
After waiting seven (7) days, you should send an adverse action letter, which confirms that you made the final decision to either withdraw the job offer or terminate employment.

Changes in Law
Generating pre-adverse and adverse action letters are generally easy and straight-forward. Many  organizations utilize a template or an automated process for inserting the subject data into the letters. However, recent changes in laws for some jurisdictions require that for pre-adverse and adverse action notices an employer provide specific information relating to the reasons they are making an employment decision or other documents or information be provided. In these cases, employers will need to customize the letters for each subject in the following jurisdictions to ensure compliance with local laws: CA, MA, NJ, Seattle (WA), Montgomery and Prince George’s Counties (MD), Philadelphia (PA), Portland (OR), Austin (TX), Chicago (IL) and New York City (NY).

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An Inside Look at Properly Conducting a Background Check (Part 1)

00013790In 2014, nearly 90% of all employers performed some sort of background screening on potential job applicants.[1]  The industry really began booming after 9/11 in an effort to, among other things, ensure workplace safety and protect companies from lawsuits for negligent hiring. Unfortunately, many background screening companies are transactional in nature and work within a “big box” mentality, which leads to increased quantity of screens but with a decreased quality review and follow-up.  Recently, one of these larger background screening companies was successfully sued for violations of the Fair Credit Reporting Act (FCRA), having misidentified an individual on two separate occasions as a convicted felon. Because of these mistakes, that individual lost two job opportunities.  According to court documents, the large screening company failed to follow its own procedures pertaining to persons with common names and failed to implement a practice with respect to individuals previously misidentified. The background investigators also failed to utilize publicly available information which would have led them to discover that – in one instance – the man they identified as the job applicant was actually in jail at the time the actual applicant applied for the position.  Although this individual won in court and received a hefty award from the jury, the outcome of similar situations is often times less satisfying, and the burden unfortunately falls on the job applicant to “clear his good name.”

Here’s an inside look at properly conducting an employment background check by an HR Investigator at a reputable background screening firm.

Upon running a criminal background check with a name and date of birth provided by the job applicant, a serious sex offense was discovered. However, the names did not match up and the middle initial of the job applicant matched only the first name of the convicted sex offender. Additional research led the HR Investigator to discover several alias names, one of which matched the applicant, with a matching date of birth.  The sex offender registry listed an address that, although similar, did not match with the information the applicant provided.  Rather than giving up, the HR Investigator grew resourceful. She forwarded a copy of the sex offender’s photo from the registry website to the client and asked them to confirm whether it was their applicant or not. Sure enough, the convict and the job applicant were the same person.  These extra steps positively identified a rapist who went out of his way to avoid detection, including providing an invalid zip code. Had the HR Investigator run the sex offender search and nothing more, this applicant’s record would have been returned as clean, and the client may have made a hiring decision without critical information about the applicant’s character and past crimes. This situation can easily happen when background checks are run by inexperienced in-house staff, or when the background screening firm relies totally on technology to push data to its clients or end users without properly reviewing the results.

Our advice to employers is simple: properly conducting the background screening PROCESS is critical. A bad hire can lead to theft, violence, high turnover, or unqualified staff. If information is simply pushed through in an effort to add one more transaction to the company books, without any quality control measures, you may want to get yourself a good lawyer… or a better background screening company.

 

 

[1]http://www.pbs.org/newshour/bb/background-checks-make-mistakes-applicants-left-little-recourse/

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Star Wars: 4 Tips to Avoid the Dark Side of Hiring

In celebration of the much awaited movie, titled “The Force Awakens,” we have decided to release a special Star Wars themed blog on hiring practices. If you have been awake during the past twelve months, chances are you’re heard about the new Star Wars movie coming out on December 18, 2015. This will be great news for loyal fans, and perhaps useless chatter for anyone who has avoided the movie series.

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Discovery of Sex Offenders Employed in Theme Parks Sparks Need for Stronger Background Checks

iStock_000015651642SmallSince 2006 at least 40 employees of national theme parks have been arrested for trying to elicit sex from minors, possessing child pornography, and committing other sex crimes involving children. These child predators worked at parks such as Disney World, Universal Studios, and SeaWorld. While none of these cases involved the children visiting these supposedly child friendly parks, these potentially dangerous employees put the safety of visiting children at risk.

This pattern of theme parks hiring employees with a history of committing child sex crimes is shocking and disturbing. Recently, 16 sex predators, some of which being theme park employees, were caught in a Florida sex sting operations. But how do these predators even become employed at children’s parks?

Disney World Spokesperson, Jacquee Wahler maintains that Disney works “closely with law enforcement and organizations like the National Center for Missing and Exploited Children” in order to strengthen efforts against hiring sex predators. She also states that they “have extensive measures in place, including pre-employment and ongoing criminal background checks and computer monitoring and firewalls.” Universal Studios and SeaWorld also described having thorough background checks. Still, despite these attempts, some sex offenders manage to get hired.

Ernie Allen, co-founder of the National Center for Missing and Exploited Children, speculates that this may be because most child predators don’t have criminal records. However, he points out that there is more that companies can do to prevent hiring sex predators. For instance, in the future, these companies could perform more diligent sex offender registry research and sex offender background checks in addition to their general pre-employment and background checks. By strengthening their pre-employment research and background checks, theme parks can avoid this disastrous scandal in the future.

 

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California Proposes Bill to Implement Random Drug Tests on Doctors

Nearly one in five doctors develops a substance abuse problem at some point in their career, and one in ten currently working have a drug or alcohol addiction.

Consider the case of neurosurgeon Christopher Duntsch. After severely damaging the nerves of one patient and paralyzing another, the Texas hospital where he worked suspended him for one month. In his first surgery post-suspension, he severed a woman’s vertebral artery, causing her to bleed to death. While accidents are not uncommon in a surgical setting, Duntsch’s drug and alcohol addiction may have exacerbated the severity and frequency of these tragic malpractices.

Duntsch had been described as disastrous and allegedly would drink on the job — stashing vodka under his desk and reportedly taking LSD and Cocaine prior to surgeries. Despite these allegations, Duntsch never lost his license. In fact, when he left the one hospital, he was given a clean record. After being hired at a new hospital, Duntsch proceeded to botch two operations so badly, one woman ended up brain dead and another partially paralyzed. At this hospital, he was fired after one week. After 12 lawsuits from patients injured or paralyzed, and two deaths, Duntsch was never convicted of a crime.

Doctors like Duntsch are the reason California legislatures are pushing to implement random drug tests for doctors with hospital privileges and drug tests immediately following any major medical mistakes such as preventable deaths.

Under federal law, airline pilots and school bus drivers need to comply with random drug tests. These tests are performed to assure pilots and drivers can be responsible for the lives of others. This new bill would ensure that doctors would be held to that same level of accountability. Had random drug testing been implemented in the hospitals where Duntsch worked, negligent behavior could have been prevented.

 

Sources:

http://www.today.com/news/your-doctor-stoned-physicians-substance-abuse-problems-continue-work-1D79801891

http://www.nbclosangeles.com/news/local/doctor-drug-tests-troy-and-alana-pack-act-252061001.html

http://www.dallasnews.com/investigations/20140301-planos-baylor-hospital-faces-hard-questions-after-claims-against-former-neurosurgeon.ece

http://www.theguardian.com/world/2014/may/02/texas-legal-doctor-lawsuit-christopher-duntsch

 

 

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Infographic: Workplace Intelligence

Ever wonder how your ‘smarts’ fit into your workplace? The infographic, “What kind of smart are you” by BestEducationalDegrees.com examines how other forms of intelligence, separate from IQ, can help or hinder a team at work.

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Philadelphia Eagles Player Targeted in Bank Fraud Scheme

Ed Hille/Philly.com

A Philadelphia Eagles player was the victim of theft by a person he trusted – an employee of a security firm. Late last month, Eagles offensive lineman, Todd Herremans made news headlines, but not for an Eagles victory. A 37-year-old man named Robert von Ryan is charged with bank fraud, allegedly stealing more than $225,000 from Herremans’ bank account.

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Government Shutdown and its Impact on HR

For the first time in 17 years, portions of the united states government are closed as the House of Representatives, the Senate and the White house were unable to reach an agreement to fund the federal government for the 2014 fiscal year.

While the affects of this government shutdown are broad and far reaching, the main cause for concern for human resource professionals should be that a number of government organizations such as; e-verify, and the Equal Employment Opportunity Commission (EEOC), have been either shutdown or severely limited.

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Top 10 Background Check Trends for 2013

The rising popularity of background checks has given rise to new trends for vetting new hires and employees by organizations across the U.S.The growth of background checks also permeates other areas such as screening of volunteers, contractors, business partners, board members, housing tenants and even purchasers of guns. Here’s a list of the latest 10 ten trends for 2013 complied by First Contact HR.

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Background Checks on Summer Interns?

Another school year is coming to a close, summer is just a few weeks away and hundreds of thousands of students who have been vying for coveted summer internships will soon begin their work. For the students, these internships can be invaluable learning opportunities and are often necessary stepping-stones for their career paths or higher education.

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