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Top Ten Mistaken Assumptions Made by Higher Education When It Comes to Background Checks

May 06, 2008

Top Ten Mistaken Assumptions Made by the Higher Education (and other Employers) When It Comes to Background Checks

When it comes to hiring employees, institutions of higher education bear the same risk as any other employer.  Due diligence in hiring, including pre-employment background checks, has become mission critical for any organization seeking to avoid workplace violence,  lawsuits for negligent hiring or the  fallout from hiring employees with unsuitable criminal records or false credentials.  In fact, colleges and universities may even have a higher duty of care when it comes to hiring given their special role in society. Parental, alumni, trustees, legislators and others are entrusting colleges and universities to provide a safe place of learning for young people.  Although there is some controversy over whether background checks are appropriate or even cost-effective for students or faculty members, when it comes to staff members, any college or university that fails to exercise due diligence in hiring is playing Russian Roulette with not only its own reputation, but with the welfare of students, staff, faculty and the public.

Below are the ten biggest mistaken assumptions that higher education HR professionals make when it comes to the area of background screening of staff members and safe hiring procedures.  These mistakes may well apply to employers in other areas as well.

  • No. 1 – Assuming all screening firm are the same: That mistake would be like saying that all schools are the same and a degree form a diploma mill is as good as a degree from a school that has a legitimate accreditation.  Background checks are not a commodity and not all screening firms are not all the same. Similarly, not all background firms are created equal.  Some screening firms offer a knowledge-based, legally compliant professional service with an emphasis on customer service.  Other firms are more of the data vendor mode, whose main emphasis is on price Higher education HR professionals need to “look under the hood” of a background screening firm to make certain that they are getting the real thing.  In selecting a screening firm, at a minimum a firm should belong to the National Association of Professional Background Screeners (www.napbs.com).  That organization is currently preparing to release an accreditation program.  In the meantime, a screening vendor should be selected with the same care as are all other providers of vital and professional services.  An HR department may want to see whether a firm displays the “ConcernedCRA” sea (www.ConcernedCRAs.com), demonstrating the screening firm’s commitment not to offshore your applicant’s data to places like India, and not to sell “database searches” as a real criminal search.  HR professionals are well advised to issue a Request for Proposal (RFP) to several firms to make sure they are getting the full story. For a sample RFP and pointers on how to select a screening firm, click here.
  • No. 2 – Assuming that database searches for criminal records are adequate protection: One of the biggest fallacies to befall higher education human resources departments is the untrue premise that database searches are real criminal checks.  Unless you are have access to the FBI databases through fingerprinting your applicants (which is only permitted in certain circumstances), any database being utilized is not the real thing.  Even the FBI database searches can result in records being missed, since the FBI database relies in great part upon the accuracy and timeliness of reports make by state and local jurisdictions. Privately assembled multi-jurisdictional databases used by many institutions can be a valuable adjunct because they can access millions of records quickly and cheaply. Yet the data can be full of holes because it is a crazy quilt of information complied from a variety of sources.  There is no guarantee that such commercial data is complete, updated, timely, or even accurate. Large swaths of the country are not included in these databases. There are even large states like California and New York where such databases are next to worthless.  Why?  Because database searches that are not supplemented by the appropriate court level search are subject to both “false positives” and “false negatives,” which means that criminals can come back as “cleared” or that  innocent applicants can be falsely labeled as being criminals. The bottom-line for the large majority of schools is that the use of a criminal database without the appropriate courthouse searches is not very likely to provide much of a defense in a lawsuit for negligent hiring, where an applicant with a criminal record is hired because the crime was missed by the database search, and harm ensures at the school.
  • No. 3 – Assuming that an applicant’s privacy is always protected and that information is kept within the borders of the United States: Now here is something that probably has not even occurred to higher education HR professionals:  many background firms ship your applicant’s data outside of the U.S. for processing in order to save money.  Theft of confidential data that can lead to identity theft is rampant oversees. In recent years, there has been a substantial effort in the U.S. to protect what has come to be referred to a “Personal and Identifiable Information” (PII).  Unfortunately, all those well-though-out protections cease to exist as a practical matter once PII leaves the shores of the United States.  The lack of any meaningful protection once U.S. data is sent offshore is a major gap in the effort to combat identity theft and to protect privacy. In some countries, for example, private data can be purchased very cheaply. Of course, data theft can also occur in the U.S. However, in the U.S., there are legal protections, resources, and laws and mechanisms to help victims of identity theft. Once the data goes offshore, that protection dissipates rapidly. Although there are economic advantages for a screening firm to offshore, a Consumer Reporting Agency (CRA) that chooses to display the "No Offshoring” seal subscribes to the belief that risking a consumer's personal and identifiable information to make more money is not justified by the potential damage to the consumer and the potential liability to the educational institution. A related issue is that some firms actually rely upon a network of  home-based workers to process personal data.  Employers should very carefully consider the dangers of using a screening firm that utilizes a home network of operators for domestic verifications or processing.  Such a practice puts the school at risk of disclosing confidential data from the applicant.  Do you want your job applicant's personal and private information spread out in living rooms, on kitchen tables, and in dorms across America? The bottom-line: Ask any vendor specifically whether they offshore personal data or use home operators.
  • No. 4 – Assuming that you need to have applicants sign a physical piece of paper: There is a green solution to the significant logistical challenges faced by institutions of higher learning that are hiring across numerous departments of large campuses, or even across multiple campuses. With the new technology available right now, background screening can be a completely paperless system.  For example, if a school uses an Applicant Tracking System (ATS), a button can be added that says “Perform Background Check.”  Releases can be handled online as well with a legally valid E-Sign electronic signature, so that no paperwork is involved whatsoever.
  • No. 5 – Assuming that any temporary employees have already been screened by the staffing firm: Another mistakes employers can make is to assume that a staffing firm or temporary agencies are screening applicants.  When a staffing firm uses the term “screening,” it can simply mean that they are trying to match up applicants with your list of needs – not that they are performing due diligence background checks.  It is crucial for you to have the staffing firm clearly specify what types of checks they are doing, if any, including: who is ordering them, what searches are being conducted, who is reviewing reports, and what criteria is being used to decide who is eligible to work for you.  Another best practice is to ask the staffing firm to include your school in the language of the background release so that you, the HR professional, can review the completed reports as well. Even though the worker is on the staffing firm payroll, your college or university can still be considered a “co-employment” and be on the hook for any crimes or misconduct.
  • No. 6 – Assuming that contacting past employers is not beneficial: Not checking those businesses or institutions where the applicant has worked for the past seven-to-ten years can be a big mistake for the HR professional.  Some HR professionals assume that since past employers are reluctant to give detailed reference information that such calls provide little value.  In fact, there are many instances where past employment verifications can be just as valuable as a criminal records search. First, past employment calls can at leas verify t dates of employment and job titles.  It also demonstrates that a school exercised due diligence when they due diligence just by making and documenting the effort. Another critical purpose is to confirm an applicant’s whereabouts for the past seven to ten years and to make certain there are no “unexplained gaps” in employment. By knowing where a person has been, an employer limits the possibility that an applicant spent time in custody for a criminal offense.  It would be difficult, if not impossible, to defend a legal action for negligent hiring that failed to confirm a person’s past employment history. Even if previous employers limit the information to just start date, end date, and job title that is still invaluable. It also assists an employer in determining which jurisdictions to search for criminal records. This is important because there is no such thing as a true national criminal record search for most employers. Employers can only obtain criminal records by searching individual courthouses. Since there are more than 10,000 courthouses in America, it is important to know where to look. Of course, an uninterrupted work history does not guarantee a lack of a criminal record. Some jurisdictions allow jail sentences to be served on weekends or through a work furlough program where a prisoner is released during working hours. However, when done in conjunction with all the other steps, checking past references is a vital part of the program.
  • No. 7 – Assuming that international background checks are too difficult: With the mobility of workers across international borders it is no longer adequate to conduct due diligence checks just in the United States. A 2000 government study shows that 11.5% of the population consists of immigrants. In addition, an increasing number of workers have spent part of their professional career abroad. The number of countries from which employers seek additional information about applicants is expansive, and includes India, China, the Philippines, France, Germany, Russia, Brazil, Mexico, Australia, Japan, Canada, among others. Because of the perceived difficulty in performing international employment screening, some employers have not attempted to verify international credentials or to perform foreign criminal checks. However, the mere fact that information may be more difficult to obtain from outside of the U.S. does not relieve an employer of their due diligence obligation. There has been a dramatic increase in the capability of screening firms to provide international verification of past employment and education, as well as criminal checks.  Employers need to be mindful, however, that costs are higher and turnaround time is longer than for domestic checks. Also, for international education checks, additional documentation is often needed from the applicant.  Another layer of complication is international privacy and data protection laws.  However, the bottom-line is that international resources are available. 
  • No 8 – Assuming that “one size fits all” for background checks: Human Resources processionals live by the rule that similarly situated people must be treated in a similar fashion.  That does not mean, however, that all employees need, or must undergo the same background checks.  It is perfectly acceptable to screen directors more intensely than janitors.  As long as all directors are screened the same and all janitor workers are screened the same, there is a rational basis for the different level of screenings. The typical rule is that a higher degree of risk justifies and may even require a higher level of screening.  In putting together screening packages then, higher education HR professionals need to weigh the potential risks of the position.  Examples of positions with of greater risk can include workers that have access to student dorm rooms, have access to vulnerable groups such as the aged, young or infirmed, have access to personal or financial details, or have to wear a uniform and can act under color of official authority.  These are all situations where people are especially vulnerable or may let their guard down and be taken advantage of.
  • No. 9 – Assuming that the internet and social networking sites can be used without limitation: Many employers have discovered that the internet can provide what appears to be a treasure trove of information when it comes to recruiting and hiring. By using search engines and social networking sites, recruiters are often able to source candidates for positions. In addition, there are many stories about employers using the internet to pre-screen applicants. There are some things to consider, however, in using the internet for screening: The first problem is often referred to as “TMI” or “too much information.” What if an internet search revealed prohibited information, such as ethnicity, national origin, sexual orientation, religious preference, or other factors that cannot be considered for employment? Another issue is that the search of Facebook or MySpace may contain a photo that reveals personal characteristics or physical problems. This can raise questions of discrimination as well. Privacy is also a concern. There is an assumption that just because something is online, it is fair game for any use. However, sites such as Facebook or MySpace have “terms of use policies” that appear to limit the use of such sites to personal social networking. A Facebook or MySpace user can argue that they had a reasonable expectation of privacy, in that only others who were interested in social networking would view their materials. That is an issue yet to be decided by courts but can still represent a risk to employers. Using private behavior for employment decisions can be problematic since some states have statutory protections in place for workers to limit consideration of off-duty conduct. Finally, how can an employer know for sure the online entry item actually belongs to the applicant and is not a fake or sham?  An applicant can be the victim of “Cyperslamming,” meaning that defamatory material is placed anonymously on the web, or material is planted on the web that is falsely attributed to the applicant. As a result of the issues, job applicants are well advised to monitor their online identity in the event an employer looks them up. There are even websites dedicated to helping applicants protect themselves. Some schools now have a policy of requiring employers to reveal whether they do such online searches as a condition for recruiting at the school. This is a developing new frontier for employers. Employers may want to think through their policies before doing random web searches. One alternative: get a specific consent from an applicant for an online search, and only do it after a conditional job offer has been made.
  • No. 10 – Assuming that it costs too much to do real due diligence: Although it is important to obtain competitive pricing, it is usually not advisable to choose the lowest-cost provider for a professional service. As the old saying goes, you get what you pay for. Although some firms can reduce some costs through efficiency and technology, one of the ways a screening firm cuts costs is by hiring fewer and cheaper employees. Since screening is a knowledge-based profession that is heavily regulated, key criteria for selecting a firm should be the knowledge, training, and experience of the staff member serving your account. Some firms also take shortcuts by using home operators or shipping confidential data offshore were there is a real risk of a security breach and possible identity theft.  Another unwise cost-cutting move is to try to convince a school that a cheap database search all by itself is a sufficient background check.


By Lester S. Rosen
 Attorney at Law and President, Employment Screening Resources
© 2008 Lester S. Rosen

About the Author:  Lester S. Rosen is an attorney and CEO of Employment Screening Resources, a national background screening company. He is a writer and frequent presenter nationwide on safe hiring, legal compliance, and pre-employment screening. He has testified in court as an expert in safe hiring and is the past co-chair of the National Association of Professional Background Screeners (NAPBS).   He authored “The Safe Hiring Manual – the Complete Guide to Keeping Criminals, Terrorists and Impostors out of Your Workplace,” and the new, “The Safe Hiring Audit.”  He has presented on the topics of safe hiring, due diligence and background checks at the last three CUPA-HR National Conferences and has presented for the National Association of Colleges and Employers (NACE).  He graduated form UCLA in 1973 with Phi Beta Kappa honors, and received his J.D from UC Davis in 1976, serving on the law review.

 

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