Background Checks in Sharing Economy Will Not Be Limited to Traditional Employer-Employee Situations in 2015

Background Check Trends

Written By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

Background checks will continue to be a focus of concern in the “sharing economy” built around the sharing of human and physical resources in such industries as transportation, short-term housing rentals or temporary job assignments in 2015.  These types of background checks fall outside the traditional employer-employee situations but are nevertheless critical as users of these services are concerned with the integrity of the service providers or renter.  However, the standards for what constitutes a background check remain elusive since there is no one definition or generally accepted standard.  This trend is number 6 on the Employment Screening Resources (ESR) 8th Annual ‘ESR Top Ten Background Check Trends for 2015.’ For a list of background check trends, visit http://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

The sharing economy, sometimes referred to as the “Peer to Peer” (P2P) economy, is where a consumer is able to “rent” or share assets owned by someone else.  Examples are housing with firms such as Airbnb or transportation with firms such as Uber, Lyft, or Sidecar where car owners “share” their vehicle with others. Other examples of the sharing economy can include sites that provide access to caregivers and baby sitters, home repair workers, housecleaning, independent contractors, tutors, or a host of other services where providers and customers are brought to together by technology.  Advances in technology have enabled such sharing to occur by providing real time information to both providers and users. Technology companies take the position that they are enabling the service but not actually providing it. For example, a company that provides technology that allows ride sharing would dispute an argument they are a transportation company.

A  problem however with the sharing economy is that even though technology firms provide solutions to enable peer to peer sharing, the public, legislators and regulators are concerned that without background checks, users of these services can be harmed.  Even though the technology firms deny they are service providers, safety concerns are still paramount.

One sharing economy business that has been in the news lately regarding background checks is Uber Technologies, a company that provides a request tool to facilitate transportation. A December 2014 article from IndianExpress.com reported that an Uber driver in India was in police custody after allegedly raping a female passenger. According to the report, the driver did not undergo the mandatory police verification or a background check and did not have a driving license issued by the Delhi Transport Authority. Also, instead of a mandatory Global Positioning System (GPS) system, the only link with the driver was an application downloaded on his phone.

According to a June 2014 article on Forbes.com, an Uber driver who passed a background check even though he had a criminal record was accused of physically assaulting his passenger and charged with two misdemeanor battery counts. Forbes reported that the accused driver had a 2009 felony conviction for selling marijuana and a 2012 felony charge for selling cocaine that should have caused him to fail the Uber background check.

Even though companies that facilitate Peer to Peer activities have a vested interest in assuring consumers that their service is safe, there continues to be no national standard as to what constitutes an appropriate background check in the sharing economy.  Each provider is free to establish its own criteria. In fact, one such company which uses an Uber type approach to matching house cleaners to people who need their house cleaned even says in their terms of use that: “The Company checks the backgrounds of cleaning service providers via third party background check services; however, the Company does not guarantee or warrant, and makes no representations regarding, the reliability, quality or suitability of such cleaning service providers.”

This leads to a number of issues. First, there is no agreed on or standard definition of what exactly constitutes a background check.  Background checks can range from a cheap and instant database check which is practically worthless in many areas of the United States all the way to an in-depth investigation including interviews with the candidate or past employers, and many variations in between.

Second, even when a standard is announced, the devil is still in the details. Uber, for example, announced in April what appeared to be a fairly detailed check.  However, experts in screening observed that the announcement raised more questions than it answered. An April 2014 post titled UBER BACKGROUND CHECKS on the Uber website states: “All Uber ridesharing and livery partners must go through a rigorous background check.” The Uber background checks go back seven years and include county courthouse records for every county of residence, federal courthouse records, multi-state criminal database, national sex offender registry, Social Security number (SSN) trace, and Motor Vehicle Records (MVR). Criteria for drivers to pass Uber’s background checks include no DUI (Driving Under the Influence) or drug related driving violations, no hit and runs, no fatal accidents, no history of reckless driving, no violent crimes, no sexual offenses, no gun related violations, no resisting/evading arrest, and no driving without insurance or suspended license charge.

The Uber policy for background checks also states: “Screening for safe drivers is just the beginning of our safety efforts. Our process includes prospective and regular checks of drivers’ motor vehicle records to ensure ongoing safe driving. Unlike the taxi industry, our background checking process and standards are consistent across the United States and often more rigorous than what is required to become a taxi driver.” The UBER BACKGROUND CHECKS page is at http://blog.uber.com/driverscreening.

The problem with such a background check policy is that it may not be nearly as complete as it may seem on the surface. A person could have attended school or worked in some county where they did not live, and therefore a relevant criminal record could be missed. In some jurisdictions, counties are close enough together that an in-depth check may call for a search of an adjacent county to really afford protection. In some states, it is relatively easy and cost-effective to access a broad statewide search that is much more comprehensive and this not addressed. It is also a well-accepted fact that one of the best defenses against a bad hire is to explore unexplained unemployment gaps. Furthermore, there is value to an in-person interview. The announced policy does not address these points. By screening standards, it is debatable exactly how rigorous this background check policy really is.

Another problem with the sharing economy is that background checks can be easily fooled by a person undergoing the background check by simply submitting a friend’s name and information. The process can take place online with no real interview or methods to detect identity fraud, as compared with a traditional employer-employee relationship where, for example, a person is interviewed and needs to show a certain amount of identification as part of the Form I-9 employment eligibility verification on boarding process. It is not very hard to set up offices where a person needs to show up in person to be interviewed and show acceptable identification, or contract with a national business to require some sort of in-person identification validation before a going through a background check.

As the sharing economy grows, stories of consumers being harmed by criminal acts of providers can be expect to increase. Given the negative fallout from such publicity to any firm in the Peer to Peer space, it would seem that an effort to create some standardized and generally accepted background screening protocols would be of great benefit to both providers and consumers. There have been efforts in the past by private firms to create a so-called “badge” that is a cyber-equivalent of a “Good housekeeping” seal of approval. However, no one firm has had the clout to create a nationally recognized and accepted due diligence standard. Of course, technology providers can just wait until they are sued and let juries decide on a case by case basis if the firm was negligent or not, but that is generally not a sound way to run a business.

However, the major peer to peer players have the ability to come together and to set standards for background checks. Such a standardized approach to background checks can be accomplished through a non-profit association that would include input from relevant stakeholders including technology firms, consumers, screening professionals, legislators, and regulators. That way, technology firms providing Peer to Peer service in a sharing economy can demonstrate their commitment to safety by adhering to a generally accepted due diligence standard for background checks and participating in their program as a service provider.  Background screening firms would have a clear protocol to follow.

ESR TOP TEN BACKGROUND CHECK TRENDS FOR 2015 WEBINAR

Employment Screening Resources® (ESR) will present a complimentary webinar hosted by ESR Founder and CEO Attorney Lester Rosen titled ‘ESR Top Ten Background Check Trends for 2015’ on Wednesday, January 21, 2015 from 11:00 AM to 12:00 PM Noon Pacific Time. To register for this webinar, please visit the registration link at https://attendee.gotowebinar.com/register/3656006267617568513.