Steps to Follow When Making an Adverse Employment Decision

Posted on March 19, 2018 by firstcontacthr

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).

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

Posted on March 2, 2017 by firstcontacthr

00013880 The importance of choosing a background screening company that prides itself on being more than a transactional organization, cannot be overstated. Employers need HR Investigators who dig deeper and go beyond the surface of uncovered information to ensure data accuracy and legal compliance. Without this thorough approach, employers may hire dangerous and/or unqualified people, or, conversely, job applicants may lose opportunities because their identity is not properly verified. Either of these outcomes is bad for business. Hiring decisions based on bad data can land an employer in court (or worse).

Talented investigators avoid potentially negative hiring decisions by putting forth the added review and research required of every background check they perform.

Below are two real-world cases of checks that needed the extra time and attention.

A Picture Worth a Thousand Words

When running a criminal background check with a name and date of birth provided by the job applicant, a serious sex offense was discovered. 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 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 investigator grew resourceful. She forwarded a copy of the sex offender’s photo from the online registry to our client and asked that they confirm whether it was their job applicant. 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 address. Had the investigator run the sex offender search and nothing more, this applicant’s record would have been returned as clean, and the employer may have made a hiring decision without critical information about the applicant’s character and past criminal activity.

Good Guy/Bad Guy

In another example based on actual events, a criminal records researcher prevented an uninformed hiring decision for another employer due to his keen instincts, due diligence and understanding of what constitutes a “red flag” when performing a background search. In this case, a job applicant’s information was run through the applicable state’s sex offender registry. The applicant’s name matched an offender, but the year of birth did not match. Further, a social security number trace did not verify. A call to the client to verify the SSN and date of birth led our investigator to an entirely different SSN and date of birth. The correct SSN was run and the address matched that of the sex offender. A Google search found that the education, prior job experience, and resume did match with the information provided by the job applicant. Unfortunately, there were two different individuals with identical information. The individual purporting to be the Good Guy was actually a Bad Guy. The Bad Guy found the Good Guy’s resume and other information online and copied it onto his employment application. A classic case of identity theft! Turns out, the Bad Guy had an extensive criminal record, including forgery, criminal trespassing, and stalking. The frightening part is that without the foresight to follow up with the client about the personally identifiable information initially provided by the applicant, the education and employment information would have checked out as there was an individual by the same name who studied and worked as put forth on the consent form. Had the investigator not contacted the client to confirm the SSN, this criminal would have skated through the background check and come out clean on the other side.

At First Contact HR, the real-life illustrations above are used as a teaching resource for all new HR Investigator hires. If a SSN does not verify, there is a name hit (even if other information does not match) and/or the job applicant lists all previous employers as “supervisor no longer there,” prudence requires follow up and additional research by a team of HR Investigators.

For more information about First Contact HR’s background screening services and human resources consulting solutions, please call 267-419-1390 or email us at client.services@firstcontacthr.com

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

Posted on December 21, 2016 by firstcontacthr

00013790 In 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/

Why You Need To Background Check [Infographic]

Posted on December 17, 2012 by firstcontacthr

Your new potential hire has just left your office following a final interview. You feel great about their attitude and they appear to have the pedigree of a top candidate. They have all the signs for success: a resume full of great experience, stories about converting tough clients, and the charisma/charm and character you’ve only ever read about in hiring books.

Continue reading →

Accuracy in Employee Background Checks is Cited as Priority by NAPBS in 2013

Posted on December 2, 2012 by firstcontacthr

The National Association of Professional Background Screeners (NAPBS) released 5 tips for conducting effective employee background checks in 2013.

The Association’s guidance is targeted to all employers that utilize employment background checks to vet employees for job opportunities. Company roles in human resources, legal compliance, risk management, finance and general management should review the full press release.

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State Laws Restricts Employers’ Use of Social Security Numbers

Posted on October 7, 2012 by firstcontacthr

In recent years identity protection has become an increasingly big deal. Specifically, the handling of Social Security Numbers (SSNs) by companies has been reworked in a number of states in order to better safeguard their employees against identity theft. The sudden concern arose primarily due to companies putting employee’s financial information at risk for years by asking for SSNs in places they really do not need to be. Identification cards, employment applications, pay stubs, mail, or even the electronic transmission of SSNs via the internet all unnecessarily heighten the risk for identity theft. With today’s criminals consistently finding new ways to exploit inadequate security systems, it’s important that companies and employers strive to cut down on excessive exposure of sensitive information.

In most states across the U.S. it is illegal to do the following:

· Publicly display or post more than the last four digits of SSNs.
· Print SSNs on employees’ badges, parking permits or timecards.
· Require people to use their SSN to access a website unless encrypted or over a secure connection.
· Use more than the last four digits to access a website unless a password or other unique identifier is also required.
· Use more than the last four digits of an SSN as an employee number.
· Send SSNs through the mail, unless the documents are applications or other such forms; and then SSNs must not be visible through a windowed envelope.
· Keep unsecured files containing SSNs and allow non authorized personnel access to such files.

The California Office of Privacy Protection has put together a set of recommendations, click here, for any entities who wish to tighten up their SSN practices.

Massachusetts CORI Reform Law and its Implications on Employer Background Checks

Posted on July 1, 2012 by firstcontacthr

There has been a surge in legislation across the U.S. with the goal of curtailing employer use of criminal records that bar employment opportunities for ex-offenders. Take for example the new EEOC guidance on the use of arrest and conviction records and the proliferation of “ban-the-box” laws.

With the enactment of the 2010 Massachusetts Criminal Offender Records Information (CORI) Reform bill, employers face a wave of changes in their use and access to criminal records.

Continue reading →

4 Steps to Complying with the FCRA when Conducting Background checks

Posted on May 17, 2012 by firstcontacthr

Looking for a good read? First Contact HR’s newest white paper, “4 Steps to Complying with the FCRA when Conducting Background Checks” is available now! Click here to download.

Steps for Employers on complying with the FCRA when Conducting Internet Background Checks

Posted on July 22, 2011 by firstcontacthr

Untitled Document

The Federal Trade Commission (FTC) recently gave an official thumbs up for the use of Internet background checks on job applicants from search engines and social media sites such as Facebook, Twitter and LinkedIn.

However, conducting Internet background checks comes with some risks. Employers and service providers utilizing Internet background checks must comply with the Fair Credit Reporting Act (FCRA), which is charged with regulating the use of consumer information.

To make sure you are complying with FCRA regulation and to minimize the risk that come with using the Internet for conducting background checks, consider the following steps:

Consult with a reputable human resource professional and/or attorney to develop a written policy and fair, non-discriminatory procedures designed to locate information that is a valid predictor of job performance. Employers should focus on objective criteria.
Consider the use of Internet material later in the hiring process to avoid suggestions or claims that the information was used to discriminate. A more conservative approach would be to use the Internet only after a conditional job offer has been made.
Take steps to ensure that the information uncovered online does not adversely impact persons in a protected class based on prohibited criteria such as: race, creed, color, nationality or age (40+). All of these and other protected criteria of applicants may be revealed inadvertently by an Internet search.
Avoid accessing information protected by state law that is considered legal “off duty” conduct. Many states have specific statutes that protect applicants and employees who engage in certain lawful activities, such as tobacco and lawful product use.
Request job applicants to complete a consent form to enhance your legal protection, and perform the Internet search only after a job offer is made, contingent upon completion of a background check that is satisfactory to the employer.
Take steps to have a written policy in place. For employers who recruit at colleges, there is a growing trend to require employers to notify students in advance as to their policy for searching the Internet for an applicant’s online identity.
Avoid use of any fake identities or engage in “pretexting” to gain access to online information. For instance, a recruiter should not be tempted to use a co-worker, friend or family member’s Facebook account to gain access to information about a job applicant.
Access and use only relevant and permissible information for making employment decisions. When using in-house staff to conduct Internet searches, ensure they are trained in the non-discriminatory use of online information, knowledge of the job description, and use of objective methods that are the same for all job candidates for each type of position.

Employment background screening reports can include information from a variety of sources: credit reports, past employment and salary history from employers, federal and county court records – and these days, even social media.

But regardless of the type of information contained in a report you use when making hiring decisions, the rules remain the same. Companies that provide reports to employers, and the employers using those reports must comply with the Fair Credit Reporting Act.

For the full article and for more articles like these, please subscribe to the First Contact HR Newsletter.