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

00013880The 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

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Amidst Boy Scout Child Sex Abuse Scandal, Delaware Valley PA Boy Scout Council Adheres To Rules, Background Checks

They’re being called the “perversion files” – a record of previously confidential files listing the names of 1,200 Boy Scout of America officials and scoutmasters who are accused of abusing young boys over a period of two decades.

The files released Thursday, October 19 contain more than 15,000 pages detailing accusations of the sexual abuse against scout leaders and officials between 1965 and 1985. The list of names in the documents were deemed “ineligible volunteers” and include those who are accused of sexual abuse towards the minors they came into contact with during boy scout meetings and functions.

Police are now responding to 523 of the alleged cases. The files were kept confidential – until now – and represent all that the Boy Scouts of America could have done to protect their young members, but didn’t. Continue reading

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State Laws Restricts Employers’ Use of Social Security Numbers

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.

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The Purpose of Credit Reports in Background Checks

The use of credit reports  in background checks have been around for decades starting with  banks and financial service institutions  as a means to vet candidates who would be handling cash and have access to  sensitive information, such as social security numbers, account numbers and balances, as well as other bank assets.  The rationale was simple: if a candidate was experiencing difficulty managing their personal finances, then how effective could they be on the job in making leading or other financial decisions that might affect the company’s bottom line. Further, if the candidate was experiencing severe personal financial stress such as payment delinquencies, liens and collection activities, would it be prudent for the financial institution to hire and place such candidates in positions with access to cash and assets that might prompt dishonest behavior like theft or embezzlement? Continue reading

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Massachusetts CORI Reform Law and its Implications on Employer Background Checks

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

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First Contact HR Top Background Screening Trends in 2012

With the increasing number of employers conducting background checks, public concerns have arisen pertaining to the method, use and fairness of such checks in potentially barring applicants from employment.

First Contact HR has compiled a list of the most significant trends that are shaping the background screening industry.

Continue reading

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New Guidance issued by EEOC on Criminal Background Checks

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on use of arrest and conviction records in employment decisions.

As a result, the new EEOC Enforcement Guidance aims to prohibit employers from using “blanket prohibitions” against hiring anyone with any kind of a criminal records, no matter how old the conviction and no matter what the prior offense may have been. When making employment decisions based on conviction records, employers should take a three (3) factor approach:

  • The nature or gravity of the offense or conduct;
  • The time elapsed since the offense, conviction; and/or completion of the sentence; and
  • The nature of the job sought or held.

More specifically, the Enforcement Guidance provides two circumstances in which an employer’s criminal conviction policy will “consistently meet” Title VII’s “job-related” and consistent with business necessity” defense. According to the EEOC, these circumstances include:

  1. employers who are able to validate their use of background screening policies and practices as a business necessity will meet the defense, or;
  2. develop a targeted, three (3) factor screening approach (as outlined above), and provide subjects with criminal records an opportunity for an “individualized assessment.”

Other defenses for employers to consider involve compliance with federal or state laws that are specific to their business. For instance, the FDIC Act requires banks to conduct criminal background checks on applicants and restricts their ability to hire individuals with certain conviction histories. Under these circumstances, this would be valid defense for claim of discrimination brought by an applicant or employee under title VII.


HR Professional Opinion

With the new EEOC Enforcement Guidance in place, here are some best practice tips and action steps for employers to consider:

Best Practice tips for employers:

  • Eliminate policies and practices that impose blanket prohibitions to employment based on any conviction;
  • Do not request arrest records from applicants;
  • Educate and train hiring managers and decision-makers about appropriate use of conviction history in hiring and promotion, and separation;
  • Revise screening procedures to ensure that they are job related and consistent with business necessity;
  • Do not ask applicants for disclosure of convictions that are not job related and consistent with business necessity, and;
  • Keep information about applicants’ and employees’ conviction history confidential.

Employer Action Steps:

  • Review background screening policies and practices in light of the new guidance, and;
  • Make adjustments needed to the extent practices cannot be justified as job related and consistent with business necessity, and;
  • Recruiters and job interviewers must be trained in connection with the EEOC’s Guidance in order to be credible witnesses in any challenge the employer’s hiring, promotion, or separation decision-making.



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Pepsi Beverages pays $3.1M to Settle Discrimination Charges

PepsiCo Inc.’s bottling unit, Pepsi Beverages, has agreed to settle federal racial-discrimination charges as well as pledged to provide job training and new roles, according to the U.S. Equal Employment Opportunity Commission.

PepsiCo Inc. provided a statement that said the EEOC did not find any intentional discrimination. However, the company’s former criminal background check policy disproportionately barred approximately 300 black job applicants from employment. The EEOC, which enforces employment discrimination laws, said in a release that based on an investigation, “found reasonable cause to believe” that PepsiCo Inc.’s former criminal background check policy discriminated against black people.

The former policy and practice exercised by the company used the checks to screen out job applicants who had arrest records – even if they were never convicted of a crime. The policy resulted in limiting job opportunities for minorities, who statistically have higher arrest rates than whites.

The monetary settlement is being allocated in part to the claims process but primarily to division amongst black applicants for new positions at Pepsi. The company has also agreed to submit regular reports to the EEOC on its hiring process and offer anti-discrimination training to hiring managers.

Read EEOC press release:


HR Professional Opinion:

(The comments below are part of First Contact HR’s opinion column where we offer the writer’s opinion on this post’s specific topic and thus should not be taken as legal advice.)

While it is unfortunate, PepsiCo Inc. was faced with claims of discrimination; it is commendable that the company has recognized its discriminatory policy and is taking steps towards creating a more diverse work environment. In the case of hiring, the EEOC clearly states: “There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

Pepsi overlooked this guideline, which could have been avoided had their HR department worked with a background screening company that could make sure their screening policies were aligned with the EEOC guidelines. Pepsi’s former policy not only limited employment opportunities for minorities by considering arrest records as a component of background screening, it also failed to take into consideration the applicant’s arrest as it related to the specific job.

First Contact HR advises its clients to only consider criminal conviction records that are job related before taking any adverse action against job candidates. Further, First Contact HR recommends employers always exercise good judgment and proposes the following ten (10) criteria for employers to consider when criminal record hits are discovered in background screening reports:

  1. The nature, extent and seriousness of the conduct /conviction;
  2. The circumstances surrounding the conduct;
  3. The frequency of the conduct;
  4. How recently the conduct occurred;
  5. The individual’s age and maturity at the time of the conduct;
  6. The presence or absence of rehabilitation and other pertinent behavior changes;
  7. The potential for pressure, coercion, exploitation, or duress;
  8. The likelihood of continuation of the conduct;
  9. How, and if, the conduct bears upon potential job responsibilities; and
  10. The individual’s employment history before and after the conduct.


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What do Criminal Background Checks Mean For Minority Job Candidates?

The national unemployment rate in the U.S. is declining, but still currently rests at an unsettling 9.1% – a decrease from 9.6% this time last year. In light of the quest for jobs in the current economy, the Equal Employment Opportunity Commission (EEOC) wants to make it easier for the nation’s minority job prospects by limiting (or even eliminating) the use of criminal background checks for employers when it comes to making hiring decisions. The commission held hearings to examine employer’s use of conviction and arrest records as a potential hiring barrier.

The EEOC argues that by limiting the ability of employers to consider criminal backgrounds check employment screening tool in hiring will allow for minority applicants, specifically African Americans and Latinos to get more jobs since the two groups have the highest conviction and arrest rates as compared to non-minorities.

The U.S. Commission of Civil Rights (USCCR) however, negates the EEOC’s claims since the hearings failed to recognize scholarly reports that challenge the assumptions that African Americans are less likely to be hired when employers use criminal background checks.

In research cited by [Caroline May, The Daily Caller]:

Civil Rights Commissioners Peter Kirsanow, Gail Heriot and Todd Gaziano pointed to research from economists Harry Holzer and Stephen Rafael and public policy professor Michael Stoll, published in the Journal of Law and Economics, which showed that employers with access to background checks are actually more likely to hire African Americans, especially African American men, than those without access to that information.

According to the research, when a criminal background check is unavailable, some employers have been known to be more prone to discriminate against minorities like African Americans and Latinos based on crime statistics. Currently, the EEOC is still reviewing the statements by the USCCR.


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