How to Avoid Hiring a Criminal for under $20.00

Five easy steps every small business can take TODAY to protect themselves and the public
(c)2002 By Les Rosen, Founder of Employment Screening Resources.

Its becoming a familiar story in the news: a small business owner hires a new employee, fails to perform a background check or reference checking, and only after a crime has been committed does the business find out about the employee’s serious criminal record. By then, it can be too late.

Hiring a person with a criminal record can lead to workplace violence, theft, embezzlement and business disruptions. And in some cases, the cost of hiring a criminal can mean financial ruin, the end of the business itself, or injury and even death for co-workers, customers or innocent bystanders.

There are over 40 million small businesses in America with 20 employees or less, and yet it is estimated that only a very small fraction of those small businesses take meaningful precautions to know exactly who they are hiring.

The law requires that all employers take reasonable steps to hire employees that are fit for the particular job. That is called, "due diligence." When an employer hires someone who causes injury, and the injury could have been avoided if the employer had taken reasonable steps to make sure that a safe person was being hired, the employer can be held legally responsible. The employer can be sued for "negligent hiring." That does not mean that a person with a criminal record can never get a job. In fact, it is to everyone's best interest that a person with a criminal record be able to find employment to become a productive citizen. But there are certain jobs that just are not appropriate for certain people. A person with a criminal history showing violence, for example, is not a reasonable fit for a job that places them into a person's home.

It can be a challenge for a small business to do background checks. First, there is no such thing as a "nationwide" criminal check. Each courthouse where a person could potentially have a record must be searched. And with over 10,000 courthouses in America, not every courthouse can be checked. In addition, for many small businesses, the time, money and effort for a background check can seem overwhelming. Being a small business owner is one of the toughest jobs in America. Not only does the owner of a small business have to make sure everything gets done, but the owner only gets paid after everyone else gets his or her money. Background checks can seem like a waste of time and money, particularly if the business had never had a problem in the past. Unfortunately, it only takes one bad hire to ruin a small business or to ruin someone else's life.

The good news is that there are five easy and common sense steps an employer can take immediately. These five steps take practically no time and the cost can be as little as $20 or less. There is no reason that any small business has to hire blind. With theses simple, quick and inexpensive steps, any small business can protect themselves, their workers and the public from a bad hire. Here are the steps:

1. Have each job applicant sign a consent form for a background check, including a check for criminal records. By announcing that your firm checks backgrounds, it will discourage applicants with something to hide, and encourage applicants to be truthful and honest about any mistakes they may have made in the past. For maximum protection, the release should extend to future background checks for retention, promotion or reassignment unless revoked in writing. If the actual job starts before a background check can be done, make sure to tell the applicant that the position is conditioned upon the employer receiving a background report that the employer finds satisfactory.
   
   
2. Ask an applicant both in the interview and in writing (on the consent form or application) if they have any criminal convictions or pending cases. During an interview, always ask, "If we were to check with the courts or police department, would we find an criminal convictions or pending cases." Since the applicant realizes they have signed consent for a background search, there is a motivation to be honest. Be sure to not limit the question to only felonies. Misdemeanors can be very serious although some states limit inquiries about certain misdemeanors. But, do not ask about arrests not resulting in a conviction.
   
   
3. Verify the applicant’s employment for the past seven years and ask them in an interview what they think the previous employer would tell you. This is crucial. An employer must call past employers to confirm dates of employment. An employer needs to look into any unexplained gaps in employment where the applicant cannot account for their whereabouts. Many employers make the mistake of not bothering to call previous employers because they have learned from experience that previous employers often will not comment on the specifics of a previous employee's job performance. However, not calling previous employers is one of the biggest and costliest mistakes an employer can make. Even if the past employers do not comment on job performance, it is critically important to at least verify employment dates and job title. Just knowing that the person has a solid job history is vital information
   
   Another vital tool is to ask an applicant questions such as , "If I were to ask a previous employer about your performance, what would they describe as your strong points? What would they describe as needing improvements? Would they have anything negative about your job performance to tell me?" Since the applicant has signed a release, they may well assume that such calls will be made, and there will be an incentive to reveal accurate information.
   
   
4. Ask for residence addresses for the past seven years. This information helps an employer establish an applicant’s whereabouts and it should match with the employment history. This can go on the applicant’s consent form. It is also critical in order to assist a professional firm in conducting a background check. Since there is no such thing as national criminal records check for most private employers, that information is necessary to determine where to search. It may also reveal any discrepancies in an applicant's history.
   
   
5. Do a criminal check in at least the county of residence— small employers can do it themselves, or have professional service do it, usually for less than $20.00. The minimum protection is a one county criminal check, done in conjunction with the other steps. The best protection is a seven year criminal check of every county where a person has lived, worked or studied, based upon the persons job and residence history, as well as a social security trace report that a background company can obtain that lists previous addresses associated with a person. For higher positions, an employer can check Federal court records as well.

Following these simple steps will go a long way toward protecting your business. Remember, if a person has a criminal record, an employer should not automatically exclude the person from employment without first determining whether there is a sound business reason, based upon the nature of the offense, and the nature of the job. In addition, just because a person has made a mistake in the past does not mean that they should never get a chance. However, certain jobs may not be appropriate for a person with certain types of convictions.

Important Note-The information in this article and the form below are not given or intended as legal advice. It is based upon generally accepted Human Resource and industry practices. An employer should check with their own attorney to determine how state or local law affects their business, and for any legal advice.

Sample Release Form: A form such as this should be a standard part of any employment application. Under a federal law called the Fair Credit Reporting Act, the form should be on a separate piece of paper if the employer intends to hire a professional third party to conduct any sort of background check. (Please note that this form is based upon the employer contacting previous employers. If a professional background firm is asked to conduct reference checks that include questions about how a person performed in a previous job, then additional language would be needed.).

Disclosure, Authorization and Consent for Pre-Employment Screening Report

I, _____________________________________________, in connection with my application for employment at ________________________________________________, hereby authorize the Employer and any agent it authorizes to perform a pre-employment background screening check (including future screenings for retention, promotion or re-assignment if applicable unless revoked in writing). I understand and agree to the following:

I understand that the employer may obtain a Consumer Report, which consists of information having a bearing on job performance, and may include information from public and private sources, public records, courts, schools, former employers and references concerning my driving record, court records, credit, worker’s compensation record, education, credentials, identity and previous employment.

If my credit report is obtained by the employer, I do____ I do not____ wish a copy free of charge. Under the Fair Credit Reporting Act, should an employer rely upon a consumer report form a Consumer Reporting Agency in taking an for an adverse action regarding employment, before taking that action I will be provide with a copy of the Consumer Report and a summary of rights. Upon written request to any Consumer Reporting Agency, I may obtain a copy of my report as provided by law.

I authorize and release people, companies, references, current and former employers, schools, credit bureaus, municipal, county, state and federal agencies and courts, to provide all information that is requested to the employer or its authorized agents. I further release and hold harmless all of the above, including the employer, to the full extent permitted by law, from any liability or claims arising from retrieving and reporting of information concerning me. I agree that a copy or fax of this document shall be as valid as the original. I certify that the following facts and the information in my resume and/or application are true and correct.

Have you ever been convicted of a crime? (Please exclude convictions for minor marijuana related offenses, convictions that have been sealed or legally eradicated and misdemeanor convictions for which probation was completed and the case was dismissed.) Yes__________ No ____________

Are you currently out on bail or released on your own recognizance pending trial? Yes _________ No ________

If the answer to either one is YES, please explain on a separate piece of paper. (An affirmative answer to any of the above will not necessarily disqualify you from employment).

I verify and affirm that all the information on this form is true and correct. Any false information or material omission is grounds to terminate the hiring process, or to terminate employment if it has started.

Your signature_______________________________________ Date__________________

Courts and other entities require the following information for identification when checking public records. It is confidential and is used for identification only.

(c)1999-2002 by Lester S. Rosen; All rights reserved. May not be reprinted or published in whole or in  part with out authorization.