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Safe Hiring Information

The ESR 25 Question Safe Hiring Audit Test

November 05, 2012

IMPORTANT NOTE: The Safe Hiring Audit Test from Employment Screening Resources (ESR) is for educational purposes only. Do not create a document that could be construed as a company policy analysis; it could be used against your organization in court. If your organization decides to conduct a formal audit, a best practice would be to have an attorney perform the audit so it would be protected by work product or attorney-client privilege.

Grading the ESR Safe Hiring Audit Test

Below is a Safe Hiring Audit Test for employers. This exercise allows you to see how your organization measures up in case you have to defend your firm’s hiring practices in court.  The Safe Hiring Audit consists of 25 questions dealing with safe hiring practices. For each of the 25 questions, test takers should score their organizations on a 0-4 point scale.

  • 0 = Doing nothing or out of compliance (equivalent to an F on a report card).
  • 1 = Taking some steps but falling short of what an employer should do (D).
  • 2 = Taking some measures but need to improve (C).
  • 3 = Taking strong measures; have some but not all documentation (B).
  • 4 = Your operation could be a model for other firms; all documentation is verified as legal (A).

There are 100 possible points for a perfect score to the Safe Hiring Audit (25 Questions X 4 Points = 100). Once you have completed all 25 questions, add the scores for the total score and then divide by 25 for the average score per question. For example, if the total score is 75, the average score per question would be 3 (75 ÷ 25 = 3). Each of the Safe Hiring Audit questions includes “Best Practice” information to help test takers calculate scores.

Take the ESR Safe Hiring Audit Test

 

1. Does your organization have written policies, practices, and procedures for safe hiring? SCORE: _____

Best Practice:

  • How would you rate your company’s written policies as far as demonstrating a commitment to safe hiring, such as found in your employee manuals or operations manuals?
  •  How accurately are specific practices documented?
  • How well will written forms and procedures stand up to an audit?
  • Do your written policies also cover the need for data protection and confidentiality as well as the need to limit the use of information to hiring and selection purposes?

Case in Point:

  •  Although a firm had an “understanding” between managers to hire safe, qualified workers, the hiring procedure is done on the basis of “oral tradition.” This would be a “0” – not compliant.

 

2. Are the safe hiring policies, practices, and procedures reviewed and updated every year for legal compliance? SCORE: _____

Best Practice:

Review your Policies, Practices and Procedures for legal compliance:

  • Federal Fair Credit Reporting Act (FCRA) followed if third party firms involved.
  •  In compliance with EEOC and state equivalent rules, especially the EEOC Guidance on criminal records issued April 25, 2012.
  • ADA and state ADA rules followed.
  • Specific state laws obeyed (i.e., California regulates both third-party screening AND internal employer investigations through the Investigative Consumer Reporting Agencies Act).
  • Privacy Protection and Defamation-avoidance procedures in place.

 

3. Are the organization’s policies and procedures on safe hiring communicated effectively to the workforce and managers? SCORE: _____
 

Best Practice:

  • Are the company’s policies and procedures on safe hiring communicated effectively to the workforce and managers?

Procedures:

  • Can you document how frequently policies and procedures are communicated?
  • If you are in a deposition, how can you document communication of your policies?
  • If so, what are the details? Hint — written documentation detailing dates and times works best.

 

4. Is there documented organizational responsibility for safe hiring with consequences of not following program spelled out? SCORE: _____
 

Best Practice:

  • Is there a position specifically responsible for safe-hiring practices; i.e. are safe hiring responsibilities in someone’s job description?
  • If safe hiring is decentralized in hiring departments, are there documented procedures in place across the organization, including training and audit of performance?

 

5. Are tools and training in place to ensure hiring managers follow a Safe Hiring Program? SCORE: _____
 

Best Practice:

  • Is there training for hiring managers, HR, etc.?

Procedures:

  • How is the training conducted?
  • Frequency of training?
  • How is training success monitored and measured?
  •  Is an identifiable person responsible to analyze, implement, and evaluate the training program?
  • How is compliance documented?

Case in Point:

  • The school district had great policies but managers failed to follow practice guidelines, which permitted a teacher with a questionable history to be hired. Also, the managers failed to document the results of background checking done on the teacher.

 

6. Is a procedure in place to audit all the safe hiring practices? SCORE: _____

Best Practice:

  • Is there a documented audit procedure to ensure safe-hiring practices are followed?…i.e. can you prove someone was auditing procedures to see if it was followed?

Procedures:

  • How is the completed audit information maintained?
  • How frequently does auditing occur?
  • Who conducts the audit process?
  • Does the audit trail go to the TOP; i.e. local managers checked by regional managers, etc.

 

7. Are all hiring policies and practices reviewed for legal compliance?  SCORE: _____

Best Practice:

  • Are there consequences/penalties if the hiring manager, HR personnel, etc. fail to implement or follow the plan?

Procedures:

  • Can employer document that anyone not following procedures is adversely impacted?

 

8. Is the Fair Credit Reporting Act (FCRA) followed if third-party firms are involved in screening? SCORE: _____

Best Practice:

  • Make sure screening service is in compliance with FCRA.

Procedures:

  • Obtain applicant’s written release/disclosure on a stand-alone document.
  • Pre-adverse action-copy of report and statement of rights so applicant can object if information inaccurate or incomplete.
  • Second letter sent to applicant if decision is made final.
  • Employer must also certify law will be followed, i.e. not discriminate, use for employment purposes only.
  • If forms provided by screening firm, review for legal compliance.
  • Be aware many states have their own rules on screening.

 

9. Are there procedures to place applicants on notice that your organization engages in “Best Practices” for hiring?  SCORE: _____

Best Practice:

  • Is there notice in the job announcement, bulletin, classified advertisement, internet site, etc. that you perform background checks?

Reason:

  • Discourages applicants with something to hide and encourages applicants to be truthful.

Procedures:

  • Is there a notice on the application form that a prospective candidate receives?
  • Do applicants sign a release for a background check?

 

10. Does your firm use an application form? SCORE: _____

Best Practice:

  • Utilize application forms, not resumes.

Reasons:

  • Resumes are often not complete or clear.
  • To applicant, a resume is a marketing tool.
  • Applications ensure uniformity.
  • Also, requires applicant to provide all necessary information, prevents employer having impermissible info, and gives places where applicants sign certain statements.
  • If no application process, is there a supplemental form with necessary language?

 

11. Does the application form have all necessary and correct language?  SCORE: _____

Best Practice:

  • Depending on how an employer chooses to implement the new EEOC Guidance on criminal records issued April 25, 2012, does your firm address the issue of when it asks about past criminal history? For example, does your firm provide an advisement that an appropriate inquiry will be made at an appropriate time in the hiring process?
  •  Does the application contain a statement that fraudulent statement or material omissions grounds to terminate the process, or employment, no matter when discovered.

 

12. Are completed applications reviewed for potential “red flags” including employment gaps?  SCORE: _____

Procedures:

Review applications for potential “red flags” from applicant such as:

  • Does not sign application
  • Does not sign release
  • Leaves criminal questions blank (This depends upon how an employer implements the new 2012 EEOC Guidance on criminal records.)
  • Applicant self-reports offense
  • Fails to identify past employers
  • Fails to identify past supervisors
  • Fails to explain why left past jobs
  • Excessive cross-outs and changes
  • Unexplained employment gaps
  • Explanations for employment gaps or leaving past jobs do not make sense

 

13. Are the six critical questions used in a structured interview? SCORE: _____

Best Practice:

Since they have signed consent and believe you are doing checks, job applicants have a powerful incentive to be truthful.

  1. “Our firm has a standard policy of conducting background checks on all hires before an offer is made or finalized. You have already signed a release form. Do you have any concerns about that?” (Good applicants will shrug this question off.)
  2. “We also check for criminal convictions for all finalists. Do you have any concerns about that?” (Make sure question reflects updated EEOC Guidance for use of arrest and conviction records and what employer
    may legally ask in your state.)
  3.  “When we talk to your past employers, what do you think they will say?” (This tells applicants past employers will be contacted and provides an incentive to be accurate.)
  4. “Will your past employers tell us that there were any issues with tardiness, meeting job requirements, etc.? e.g., applicant was tardy, did not perform well, etc.?” (Questions must be on job-related issues only.)
  5. “Can you tell me about any unexplained gaps in your employment history?” (Where gaps in the employment history are not explained, it is critical to ask this question.)
  6. “Is everything in the application and everything you told us in the hiring process true, correct, and complete?” (The critical final question that sends a clear message to applicants that the employer takes the process seriously and they need to be completely open, honest, and truthful.)

 

14. Are interviewers trained in legal compliance? SCORE: _____

Best Practice:

Train all interviewers to:

  • Question all applicants in a similar fashion
  • Not ask illegal questions, i.e., questions that are discriminatory or prohibited by law
  • Respond when an applicant volunteers impermissible information
  • Not to make statements to an applicant such as promises about the job
  • Not mark or make notes on resume

Procedure:

  • Document the interviewer’s training and audit results.

 

15. Does the firm check past employment, education credentials, and references? SCORE: _____

Best Practice:

  • Critical to find out where applicant lived, worked, and went to school in past 7 years to get an idea of where to look for criminal records.
  •  Verify employment to determine where a person has worked even if you only get dates and job title.
  • Verify academic credentials to avoid embarrassing situations later (See Yahoo CEO who had to leave company and cases of doctors practicing without licenses.)

Reasons:

  • Biggest mistake employer can make is not contact past employers — this is just as critical as criminal checks.
  • Looking for unexplained gaps.
  • To target locations to search for criminal records.
  • If able to verify person gainfully employed last five-ten years, they are less likely to have spent time in custody for serious offense.
  • Just attempting/documenting demonstrates due diligence.
  • Check academic records to see if degree is from “diploma mill” (fake college).

Case in Point:

  • See the example of the Yahoo CEO who had to leave company after discrepancy found on academic credentials. Also see case of murderous carpet cleaner or the case of the state sponsored computer school.

 

16. Does the firm look for “employment gaps”?  SCORE: _____

Best Practice:

  • Critical to verify employment to determine where a person has been even if you only get dates and job title.
  • Looking for unexplained gaps.

Procedures:

  • Document that interviewer reviewed application for gaps and asked applicant.
  •  If can verify person gainfully employed last five-ten years, then less likely spent time in custody for serious offense.

 

17. Is the firm conducting an appropriate search for criminal records?  SCORE: _____

Best Practice:

Understand EEOC rules for use of criminal records based upon business necessity:

  • The nature and gravity of the offense
  • The amount of time that has passed since the conviction or completion of sentence
  • The nature of the job being held or sought
  •  Also be aware of updated EEOC guidance for criminal records as of April 2012.
  • Special rules considering arrests only.
  • Did the applicant lie in the application?
  • Criminal information was verified and information is current, belongs to applicant, employer has understanding of information, and there is no prohibition on the information’s use.

 

18. Does the firm understand the appropriate uses and the limitations on criminal record databases?  SCORE: _____

Best Practice:

  • Use criminal databases only as a secondary tool in connection with county court level criminal searches since databases may contain inaccurate and incomplete information.
  • Verify possible criminal “hits” from databases with a county court level search since databases may contain “false positives.”

 

19. Are the firm’s policy and procedures for the use of negative criminal information legal and compliant with federal and state laws?  SCORE: _____

Best Practice:

  • Policies – are there written guidelines to follow?
  • Documentation – are all procedures and decisions documented to file?
  • Individualized review – flat policy can be discriminatory.
  • Uniformity – are similarly situated applicants treated the same?
  • Legal compliance – if third party utilized under the FCRA, have a procedure to ensure pre-adverse action and post-adverse letters?

 

20. Does the firm use other screening tools and, if so, is the information used in accordance with safe hiring guidelines?  SCORE: _____

Best Practice:

Take these additional steps as necessary if related to job:

  • Criminal record checks
  • Civil records if relevant
  • Social Security trace
  • Education and past employment credentials
  • Credit report (if appropriate and if policies are in place to ensure that use of credit information is recent, relevant, and fair)
  • Driving record

 

21. Are the mechanics of your screening program documented?  SCORE: _____

Best Practice:

  • Document all procedures.
  • Process to send requests to screening company, track progress, receive reports, maintain privacy, and restrict results to only authorized persons.
  • Track the stages in the hiring process for screening. (Typically only the finalists are subject to screening.)
  • Degree of screening for each position. (Not every position needs to be screened at the same level.)
  • Uniform screening procedures – similarly situated applicants treated in the same non-discriminatory manner.
  • Storage and retention of reports separately from personnel files.

 

22. If screening is outsourced to a third-party firm, can the employer demonstrate Due Diligence and show procedures are in compliance with the FCRA?  SCORE: _____

Best Practice:

  • If background check failed due to screening firm, then employer may be liable if he or she failed to exercise due diligence in selection of firm.

Factors:

  • Expertise/knowledge of the service provider
  • Legal compliance — FCRA and state law compliance
  • Personal service and consulting — providing professional consulting services
  • Training/consulting services available
  • References
  • Pricing of secured internet order/reporting options.

 

23. Are procedures in place if a person with negative information is hired?  SCORE: _____

Best Practice:

  • Firm has examined the type of support, supervision, and structure needed to improve the chances of success within the organization.
  • Firm has considered the nature of the job and the circumstances of the past offense to take appropriate measures to protect the firm, co-workers, and the public from harm.
  • Firm has documented decision-making factors.

 

24. Are procedures in place if employment is offered before a background check is completed?  SCORE: _____

Best Practice:

  • If employment begins before completion of a background check, is there a written statement that employment is conditioned upon receiving a report that is satisfactory to the employer?
  • Does policy eliminate a possible debate over what is an acceptable background report?

Issue: 

  • May need to escort the person off premises if background check is negative.

 

25. Does the organization have written policies, practices, and procedures for screening employees post-hire?  SCORE: _____

Best Practice:

  • Safe hiring also extends to retention, supervision, and promotion.

Procedures:

  • Are supervisors periodically trained and educated regarding the employer’s liability for negligent retention, supervision, or promotion?
  • Are supervisors trained to recognize, report and deal appropriately with workplace misconduct?
  • Are there procedures to investigate workplace misconduct?
  • Is there a mechanism for workers or managers to report and record workplace misconduct?
  • Is it part of written job descriptions for supervisors to record, report and address workplace misconduct and part of performance appraisal?
  • Does firm audit and review entire Safe Hiring Program each year?

 

SAFE HIRING AUDIT TEST TOTAL SCORE: ________

Take the total score and then divide by 25 for the average score per question.

TOTAL SCORE ÷ 25 =________ AVERAGE SCORE PER QUESTION

  • Average score per question lower than 1 = F
  • Average score per question between 1 and 2 = D
  • Average score per question between 2 and 3 = C
  • Average score per question between 3 and 4 = B
  • Average score per question of 4 = A

If your overall score is less than 75 points and your average score per question is lower than 3 points – You have to do some work to improve your safe hiring program.

If your score is above 75 points – Good job but there still may be some room for improvement.

If your score is 100 points – Congratulations!

 

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