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Part 4 of 2011 ESR Background Check Trends Review: Temporary Worker Screening and Cheap Online Database Checks

The fourth of five installments of the Employment Screening Resources (ESR) Background Check Trends of 2011 Review features the number four trend, screening temp workers, and the number three ranked background check trend of the year, the use of fast and cheap online checks. To view previous installments of the ESR Background Check Trends of 2011 Review, visit Part 1, Part 2, and Part 3.

  • Number 4 ESR Background Check Trend for 2011: Background Checks of Temporary Workers Cause for Concern for Employers as Hiring Increases.
  • Number 3 ESR Background Check Trend for 2011: Employers Discover Fast and Cheap Online Background Checks Using Criminal Databases Not Always Accurate or Legal.

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Background Checks of Temporary Workers Cause for Concern for Employers as Hiring Increases

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Many employers do not realize they potentially face the same exposure from vendors, independent contractors, and temporary employees from staffing firms as they do from their own full-time employees when it comes to negligent hiring lawsuits. Risk management controls of employers often do not take into account the “need to know” through background checks of workers who are not on their payroll but are on their premises, with access to computer systems, clients, co-workers, assets, and the general public.

The law is absolutely clear that if a vendor, independent contractor, or temporary worker harms a member of the public or a co-worker, the employer can be just as liable as if the person were on the employer’s full-time payroll. All of the rules of due diligence – which include background checks – apply with equal force to vendors, temporary workers, or independent contractors. A business can be liable if, in the exercise of reasonable care, the business should have known that a vendor, temporary worker, or independent contractor was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligence not only in whom they hire on payroll, but in whom they allow on premises to perform work. Employers can also be held liable under the legal doctrine of “co-employment,” which means that even though the worker is on someone else’s payroll, the business that uses and supervisees the worker can still be held liable for any misconduct.

However, many employers have found out the hard way that workers from a vendor or staffing firm or hired as an independent contractor without proper background checks can also cause damage. When an employer is the victim of theft, embezzlement, or resume fraud, the harm is just as bad regardless of whether the worker is on their payroll or someone else’s payroll. No employer would dream of walking down the street and handing the keys to the business to a total stranger, yet many employers across America essentially do exactly that everyday when engaging the services of vendors and temporary workers with proper background checks.

So-called “temporary” workers can cause permanent problems for employers without the background checks that are performed on full-time employees. As hiring of temporary workers increases – and since the hiring of temporary workers is usually an indication of hiring full-time workers in the future – employers will become increasingly more concerned with background checks of temporary workers in the coming year. 

This is trend #4 of the Employment Screening Resources (ESR) Fourth Annual ‘Top 10 Trends in Background Screening’ for 2011.

Employers do have difficulty ensuring they have exercised due diligence regarding vendors and independent contractors since there is sometimes not a direct employer-employee relationship. However, an employer still has liability issues if a vendor or independent contractor causes harm to third parties. Case law from courts throughout the United States is clear that businesses have liability for acts of independent contractors. The duty of care must be exercised in all aspects of hiring, and it applies to retaining the services of a vendor or independent contractor. For an example of why employers should be sure staffing firms run background checks, read ‘Staffing firm supplies embezzler with felony fraud conviction but not liable to Employer’ by Employment Screening Resources (ESR) President Lester Rosen at: http://www.esrcheck.com/wordpress/tag/recruiters/page/2/.

The practical issue for employers is how they ensure that vendors or workers hired by third parties are safe and qualified. Fortunately, there are a number of cost-effective avenues available to employers to protect their businesses, their workers, and the public. Employers can insist in any contract for any service that any time a worker comes on premises, that worker has been the subject of a background screening. This has become a practice gaining widespread acceptance in American businesses. An employer must have a hard and fast rule — no worker supplied by a third party is allowed to work unless the worker has a background check.

However, just ensuring that a staffing firm does background check can be insufficient unless the employer:

  • Verifies that a legitimate and qualified background screening firm is being used.  Employers should at a minimum insure the use of a background screening firm that is a member of the National Association of Professional Background Screeners (NAPBS) and, better yet, that the background screening firm is accredited by NAPBS.
  • Verifies that the background screening protocols are the same as the employer uses for their own hires.
  • Agree to a methodology for dealing with potentially negative information. Some employers insist that if any derogatory results are found that the employer be advised.
  • Verifies that the release form being used by the staffing firm allows the workplace to view the report if needed. Equally important is that there be language in the release that confirms that the background check process does not create or imply an employer-employee relationship with the workplace where the staffing firm is sending the worker. 

Many employers in order to ensure a uniform and consistent process, will require a staffing firm to utilize the same background screening firm the employer uses for their own hires. 

Government job statistics show why background screening of temporary workers is so necessary. According to ‘THE EMPLOYMENT SITUATION — NOVEMBER 2010′ report from the U.S. Bureau of Labor Statistics (BLS), although the unemployment rate edged up to 9.8 percent and the number of unemployed persons was 15.1 million in November, temporary help services continued to add jobs over the month with temporary employment rising by 40,000. Employment in temporary help services has risen by nearly half a million jobs – 494,000 – since September 2009.

The number of persons employed part time for economic reasons is currently 9.0 million. Overall, employment in temporary services showed gains throughout 2010 and should remain strong into 2011, increasing the need for background checks of temporary workers.

As reported earlier on ESR News, even though the U.S. Census performed background checks for all applicants and employees according to the ‘BACKGROUND CHECK FAQ’ page, incidents involving temporary Census workers hired by the government serve as a prime example of why background checks of temporary workers is so important:

Examples other that the U.S. Census as to why temporary workers need employment screening include firms that routinely hire nighttime janitorial services without appropriate due diligence including background checks, and fast food industry routinely hiring suppliers and service firms that come into their restaurants to clean or deliver supplies. Without knowing who has the keys to facilities, employers give total strangers unfettered access to their business — and are totally exposed to the risk of theft of property, trade secrets, damages, or even workplace violence.

With more people looking for employment, there is a need for more employment screening. Whether the work is temporary, part-time, or full-time, an effective employment screening program can help any business succeed in any economy by ensuring a safe workplace. Employment Screening Resources (ESR) – a leading background check provider accredited by the National Association of Professional Background Screeners (NAPBS) –offers a complete array of vendor screening services.

For information on an effective background check program for vendors, staffing, and temporary workers, visit http://www.esrcheck.com/services/vendor_screening.php. To read the article ‘Staffing Vendors, Co-employment, Background Checks, and Lawsuits’ by Lester S. Rosen, President of Employment Screening Resources (ESR), visit: http://www.esrcheck.com/wordpress/2010/06/28/staffing-vendors-co-employment-background-checks-and-lawsuits/. For more general information on background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Fourth of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be ‘Safe Harbor’ Certified for data privacy protection. To learn more about ESR’s Leadership, Resources, and Solutions, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.


http://www.bls.gov/news.release/empsit.t08.htm http://www.census.gov/hrd/www/jobs/background.html

Screening Vendors and Temporary Workers

A recent article in the SHRM 2008 Staffing Management Library underscores the need to screen even temporary hires.  Although many employers have well thought-out programs for their regular employees, temporary employees from staffing firms, 1099 workers or vendors pose similar risks.  The article explained why screening temporary employees is critical, and offers suggestions on how a firm can protect itself.

The article also quotes ESR President Lester S. Rosen: 

“Even if you have a person on a short-term assignment, you’re exposed,” added attorney Lester S. Rosen, president and CEO of the Novato, Calif.-based firm Employment Screening Resources. “They have the keys to the kingdom. Once they’re inside your building, they have access to your files and have the potential to do great harm.”

Rosen said that while staffing vendors “have traditionally not engaged in a great deal of screening because it slows down the placement time and adds to the cost,” they need to understand that they have “a huge risk” if they send unscreened employees to a workplace.

“They have to realize that every placement they make is potentially a game of Russian Roulette that can put them out of business,” he explained. “If you’re a staffing vendor, it only takes one bad hire to lose your reputation, lose a client and [potentially to] get sued.”

And even though an extended worker may be getting a paycheck from the staffing vendor, under “co-employment” law, employers may still be at risk of a negligent hiring suit if something goes wrong.

“If [temporary employees] cause a hostile workplace, hurt a member of the public or attack a co-worker, arguably employers are just as liable as they would be if this were a full-time, regular employee,” Rosen said.

The fact that the staffing vendor said it did background checks may not be much of a defense for an employer if the check was inadequate or ineffective. For this reason, it pays to do adequate due diligence to head off any potential lawsuits down the road.

After all, Rosen said, “Even the CIA will, every so often, hire a spy or a crook.”

The article discusses the need to evaluate the risks involved in utilizing an extended workforce and to develop an appropriate screening program.  The screening may be performed by the same firm that checks new applicants.  If done by the staffing vendor’s firm, then the employer can require that the same protocols be used that it uses internally. 

For a full copy of the article, see http://www.shrm.org/ema/library_published/nonIC/CMS_024438.asp#TopOfPage