BACKGROUND CHECKS: WHAT YOU DON'T KNOW CAN HURT YOU!

David L. Perkins, Jr.

If you subscribe to the theory that having more data contributes to making a better decision, then the advantage of conducting background checks on your prospective hires is apparent. However, there are also legal considerations that make it worthwhile to attempt to obtain background information, even if the attempt is ultimately unsuccessful. For example, consider a situation where an employee engages in violent conduct at your workplace and is later found to have engaged in similar conduct at a previous job. You will be in a far better position to defend against claims of "negligent hiring" if you at least attempted to obtain background information from the prior employer, even if your attempt failed. Accordingly, at a minimum, it is a good practice to contact each previous employer of the prospective hire and to record accurately the questions asked and the responses received.

DO-IT-YOURSELF BACKGROUND CHECKS
For many positions, having one of your own employees make a telephone call to each of the applicant’s prior employers, or making the call yourself, will provide all the information you need. The primary advantage of doing background checks yourself rather than an outside agency (commonly referred to as a "consumer reporting agency" or "CRA") is that using a CRA subjects you to certain federal and state laws that do not apply when the background checks are conducted in-house. An employment lawyer licensed to practice in your state can advise you on the particular state laws that apply and can provide you with a suitable application form with the necessary authorization.

If you decide to conduct background checks in-house, here are a few pointers to keep in mind:

OBTAIN WRITTEN AUTHORIZATION FROM THE APPLICANT
Even if you will be using your own employee to make inquiries into the applicant’s background, your employment application should include a statement instructing the applicant to designate any prior employers or other references who you are not authorized to contact, and a statement authorizing you to contact anyone who has not been so designated. If the applicant instructs you not to contact a particular person, abide by that instruction but ask the applicant the reason for it. In some cases, the explanation may be a simple one such as, "My current boss doesn't know I am looking for a new job." In other cases, the question will prompt the applicant to provide information about past work experiences that he or she would not otherwise have disclosed.

CALL THE RIGHT PEOPLE
In general, telephone calls to prior employers are more helpful than calls to the people listed by the applicant as "Personal References" -- I have never yet heard of an applicant receiving a negative reference from Mom!

Moreover, if you can make contact with someone who supervised or actually worked with the applicant, you are likely to obtain more helpful information than if you speak with Human Resources. In many cases, Human Resources personnel understandably and properly will be unwilling to offer any information beyond the applicant’s dates of employment and the title the applicant held at the time his or her employment ended. In contrast, individuals with whom the applicant actually worked on a daily basis may be less circumspect, and will nearly always have information more relevant to the applicant’s suitability for the job you are trying to fill.

To reach the best contacts, it is a good idea to have the applicant provide, either on an application form or during an interview, the name of his or her direct supervisor at each prior employer. If those names are not available or the individuals are not reachable when you call, an alternative is to ask to speak to the current supervisor of the department or division in which the applicant worked.

ASSIGN THE RIGHT PEOPLE TO MAKE THE CALL
It is important that the employee conducting background checks be familiar with legal guidelines governing interviews. Even with an authorization from the applicant, you will not be protected against charges of discrimination if you attempt to obtain from a third party information that you could not legally require the applicant to provide directly (see "Ask the Right Questions", below).

ASK THE RIGHT QUESTIONS
Before you call a former employer, you should determine what information is directly relevant to an applicant’s ability to perform the duties of the position for which you are hiring. On that basis, you should create a list of relevant questions and stick to it. Generally, you are free to inquire into areas relating to particular job skills (for example, whether the applicant has had experience working with a particular type of equipment) and areas relating to traits that you require of all employees (for example, regular attendance and the ability to work well with others). However, you should avoid questions that are likely to take you into areas protected by privacy rights. For example, you may inquire of a past employer whether the applicant had a good attendance record, but you should avoid inquiring into the specific reason for absences, which often implicates medical issues, marital status and other privacy concerns.

USING CONSUMER REPORTING AGENCIES
In some instances, particularly when hiring for a position that involves high-level responsibilities or access to valuable company assets, you might wish to conduct a background check by using a CRA – an outside service that regularly engages in gathering or evaluating information about individuals for the purpose of providing reports to third parties. If you decide to use a CRA, an employment attorney licensed to practice in your state can provide you with the necessary documents to ensure your compliance with all relevant federal and state laws. While the particular requirements of those laws are beyond the scope of this article, you should be aware that such laws create technical and highly specific rules concerning the nature, timing and format of authorizations that must be obtained by employers, and notices and disclosures that must be provided by employers. Such laws also contain requirements governing the conduct of the CRAs themselves, so selection of an established and reputable CRA is important. Your human resources association or your employment lawyer should be able to provide recommendations and additional advice.

This article was written by David L. Perkins, Jr. with the special expertise of Barry D. Kellman, a partner in the Employment Law Department of Greenberg Glusker in Los Angeles. Mr. Perkins is a founding partner of Vercor and manages the Tulsa, Oklahoma office of Vercor.