The Safe Hiring Blog

The Story Behind the Story - Why States and Cities are Concerned about Second Chances for Ex-Offenders

There is an increasing awareness in the United States that ex-offenders are having difficulty obtaining jobs due to their criminal records.  Although employers have a duty to exercise due diligence to promote a safe workplace, civil rights laws also do not permit employers to automatically disqualify someone with a criminal record before considering if there is a business justification based upon the nature and gravity of the crime, the nature of the job and how long ago the job occurred.  As noted above, New York has added additional factors that can be considered.

As reported in past ESR newsletters, there have been efforts made to help ex-offenders obtain jobs. In its January, 2007 newsletter, ESR reported that a number of municipalities were not asking about past criminal records on the initial application. The short-hand name is “ban the box,” referring to the box on an application asking about past criminal conduct. The logic behind theses law is to ensure that applicants are considered for jobs based upon their qualifications and experience before the employer searches for criminal records. In addition, such protection also encourages ex-offenders to apply in the first place. Cities are concerned about the burden placed on them by large numbers of un-employed ex-offenders.  See:  http://www.esrcheck.com/newsletter/archives/January_2007.php#T1

In March, 2008, the ESR newsletter discussed a meeting of the Conference of Mayors in New York City on the same topic. According to a press release from the Conference;

“With 1 in 31 American adults in prison, jail, on parole or probation, the US prison system is in crisis. Hundreds of prisons nationwide are overcrowded to the breaking point, and high recidivism rates are largely to blame: 39 percent of prisoners have served three or more sentences. This cycling in and out of prisons is taking a devastating economic toll on already-vulnerable urban communities. At this critical moment, policymakers and experts are determined to come together and develop concrete solutions to making sure that people who leave prison do not reoffend and go back.”

See:  http://www.esrcheck.com/newsletter/archives/March_2008.php#T1

In the September, 2006, edition, ESR reported on lawsuits for discrimination based upon ex-offenders denied employment.   http://www.esrcheck.com/newsletter/archives/September_2006.php#T1

In passing the new laws in New York, the New York legislature gave as a justification that up to 60% of ex-offenders are unemployed one year after release and there is a strong correlation between unemployment and recidivism.  The legislature cites statistics that, in New York State, eighty-three (83%) of individuals who are in violation of the terms of their probation are unemployed.  See (legislative justification contained in New York A07847)

The bottom-line: As a society, we do not want to risk the lives and property of people by bad hiring decisions. Employers who fail to exercise due diligence can be sued, and innocent consumers, co-workers and members of the public can be the victims of workplace violence, theft or other wrongdoing.    

On the other hand, our society does not want to create a permanent class of unemployable ex-offenders who can never re-enter society and be productive. Automatic rejection of any applicant with a criminal record makes it very difficult for an ex-offender to get back into the workforce. Given that, on the average, it costs over $30,000 a year to incarcerate a prisoner in the United States, and that without a job it is very difficult for an ex-offender to become a law abiding tax paying citizen, it is critical that society gives everyone an opportunity to work. Unless ex-offenders can get a second chance, our society will spend more time and resources building prisons instead of schools, hospitals and roads.

The key is to understand that there is a job for everyone, although not everyone is qualified for every job. Employers should not overreact or react automatically because an otherwise qualified applicant has had difficulty in the past unless there is a business justification to reject the applicant. However, this pre-supposes that employers are doing proper screening and practice due diligence in their hiring.

It is also important for our society to help with the re-entry of ex-offenders by supporting programs and opportunities. In fact, the National Association of Professional Background Screeners (www.napbs.com) has donated money to such programs.

Background screening firms are often caught in the middle of this debate.  Although a screening firm does not make the hiring decision, screening firms are retained by employers to research potential criminal records.  A background screening firm should clearly advise employers that there are limitations on the use of criminal records.

New York Passes Four New Rules Affecting Background Checks to Help Ex-Offenders Have a Second Chance

Effective February 1, 2009, three (3) new rules go into effect in the State of New York designed to give ex-offenders a second chance of entering the workforce.  These rules affect both employers and background firms.  A fourth law, effective September, 2008, gives employers some additional protections against lawsuits for negligent hiring if they can show that an applicant with a criminal record was hired after good faith consideration of the rules affecting the use of criminal convictions.

Under existing New York law (Correctional Law Article 23-A), an employer is required to consider and balance various factors where an applicant has a criminal record (unless, of course, there is a statute that prohibits the employment of a person with certain convictions).   The factors are set out in New York Corrections law section 753 found at

http://www.labor.state.ny.us/agencyinfo/PDFs/CorrectionLaw%20Article%2023-A%20_4_.pdf

The factors enumerated in section 753 of Article 23-A include such things as:

The duties of the job
The relationship between the criminal offense and the job
How long ago the conviction occurred
 The applicant’s age at time of the crime
How serious the offense was
Information produced regarding the applicant’s rehabilitation and good conduct.
In passing some of these laws, the New York legislature cited a 2007 study that found that New York employees were largely not familiar with New York laws on utilizing past convictions, or that a criminal record poses a significant barrier to employment.

In response, the three new laws require the following effective February 1, 2009:

1.      Provide a copy of Article 23-A:  An employer must provide a copy of Article 23-A to all job applicants undergoing a background check.  An employer may want to provide that notice at the same time the applicant signs a consent form and receives a disclosure form.  A technical reading of the statute may suggest such a requirement is limited only to a situation where an employer is requesting a special type of background report called an “Investigative Consumer Report,”  where information is obtained through interviews.  However, the legislature in New York, based upon the legislative history, clearly intended this to apply to all consumer reports.  As a best practice, employers should consider providing this notice regardless of the type of background report being conducted. 

2.      Posting a copy of Article 23-A:  An employer must also post a copy of Article 23-A in “a place accessible to his or her employees and in a visually conspicuous manner.”  Employers can simply download the copy of 23-A linked in this article.  The required notice will likely be included in commercial labor posters that come out in 2009 for the state of New York.

3.      Provide additional copy of Article 23-A if a criminal record is found:  Where a background report on an applicant contains information on a criminal conviction, the employer must again provide a copy of Article 23-A to the applicant.  

As part of the legislative approach, New York employers that follow Article 23-A now have increased protection from lawsuits for negligent hiring. This protection applies where an employer hires someone that has a conviction history but the employer has made a reasonable and good faith determination that, due to the factors in Article 23-A, the applicant should still be hired. In that situation, there is a “rebuttable presumption” that evidence of the employee’s past criminal record cannot be admitted into evidence and be used against the employer. 

A “rebuttable presumption” is an assumption of fact accepted by the court until disproved by the other side.  For example, evidence of the employee’s past criminal record can only be used in a negligent hiring case if the plaintiff can overcome the presumption by showing that there was not a reasonable and good faith determination by the employer under article 23-A.  This new protection can potentially provide employers that do hire applicants with a criminal record protection from a lawsuit as long as the employer can document  that the employer discovered the criminal record and then applied the criteria in Article 23-A in a reasonable and good faith manner. 

ESR clients will receive a detailed memorandum and training in January on the details of these new laws in New York as well as some other “only in New York” rules. This also raises issues on how employers that are not in New York need to deal with New York applicants or applicants that formerly lived in New York.   For employers that would like the online links to the actual legislation as well as the legislative memos that outline the purpose and justifications for these laws, please contact Jared Callahan at 415-898-0044 or jcallahan@esrcheck.com   

The Good News and the Bad News About the FCRA

There is bad news and good news about the FCRA. The bad news is that the FCRA is a very complex and convoluted law that makes little sense if an employer sits down and tries to read it. Anyone wanting to read the law can go to the website for the Federal Trade Commission (FTC), the federal agency charged with administering the law.

The good news is that there are only four basic steps an employer needs to know about the FCRA in order to begin an Safe Hiring Program while using an employment screening firm. These steps are explained in detail in Complying with the Fair Credit Reporting Act (FCRA) in Four Easy Steps©.
Here is an important fact: the FCRA kicks in when a pre-employment background pre-screening is conducted by the CRA. Therefore, if an employer works with a professional pre-employment background firm, the employer should select the firm based in part upon the background firm’s knowledge of the FCRA. A competent background firm should know how to fully comply with legal requirements of the FCRA, including preparation of all documents and forms needed for a fully compliant screening program.

Employers risk legal liability if the procedures utilized to check on applicants infringe on legally protected areas of privacy. By following the FCRA, an applicant's privacy rights are protected. For this reason, many legal experts advise employers to engage the services of an outside screening firm.

When engaging the services of a CRA, both the employer and the CRA must understand how critical it is to follow the FCRA. Failure to do so can result in substantial legal exposures, including fines, damages, punitive damages, and attorneys fees. Below is a brief summary of the substantial penalties involved for NOT following the FCRA.

© excerpt from The Safe Hiring Audit book.

Basic Explaination of the FCRA

When an employer uses a third party to help conduct a background check, there is a critical federal law the employer must be familiar with and follow. The law is called the Fair Credit Reporting Act (FCRA). Even though the name of the law uses the term “Credit,” the FCRA goes far beyond credit reports. The FCRA establishes specific requirements and rules for a pre-employment background report, called a Consumer Report, which is usually much broader in scope than just a credit report.
A Consumer Report can include a wide variety of obtained information concerning job applicants, such as criminal and civil records, driving records, civil lawsuits, reference checks, and any other information obtained by a Consumer Reporting Agency. Therefore, the FCRA fundamentally controls the information on applicants that is assembled, evaluated, or disseminated by certain third parties and used for employment purposes.

When first passed in 1970, the FCRA was primarily meant to promote confidentiality, privacy, accuracy, and relevancy regarding information gathered about consumers. The law was extensively amended in 1996, 1998, and 2003.  The amendments substantially overhauled the use of Consumer Reports for employment purposes by providing greater protection to consumers.

Additional Resource - Complying with the Fair Credit Reporting Act (FCRA) in Four Easy Steps©

© excerpt from The Safe Hiring Audit book. 

Why Pre-screen Potential Employees?

Employers have become painfully aware of the tremendous consequences of bad hiring decisions. Pre-screening promotes a safe and profitable workplace. Pre-employment screening is an effective risk management tool that has been proven to significantly reduce the risk of a bad hire. Employers typically engage in pre-employment screening for four reasons:

To discourage applicants with something to hide.  Simply having a pre-screening program discourages job applicants with a criminal background or falsified credentials.  To eliminate uncertainty in the hiring process.  Many employers have discovered the hard way that relying on instinct alone is not enough. Hard information is also an important part of the hiring process.

To demonstrate Due Diligence.  All employers have a reasonable duty of care in the hiring process. This means an employer must take reasonable steps to determine whether an employee is fit for a particular job. For example, if an employer who hires a bus driver and does not take reasonable efforts to determine if the bus driver has a criminal record, it could be found liable if that driver assaults a passenger and a reasonable background check would have discovered the prior assaults.
To encourage honesty in the application and interview process.  Employers find that just having a background program will encourage applicants to be more forthcoming about their history.

Performing background screenings is certainly not a guarantee that every bad applicant will be discovered. For the prices charged by pre-screening firms, employers cannot expect an in-depth and exhaustive FBI-type investigation. However, just engaging in screening program demonstrates due diligence and provides an employer with a great deal of legal protection.

It is also important to understand that a pre-screening program is aimed at how a person has performed in the public aspect of their lives. Items such as a criminal records or previous job performance reflect how a person behaved towards others or discharged his/her obligations or responsibilities.  Screening is NOT an invasion of privacy, a sign of mistrust, or an act of "Big Brother."

What employers can - and can't - find out about applicants

By Les Rosen

Attorney at Law and President,
Employment Screening Resources

Violence, theft and criminal activity have become greater risks in the workplace, so more employers are performing criminal background checks in addition to asking about criminal records on job applications. In fact, employers who fail to take reasonable precautions about whom they hire can be sued if an employee with a criminal background harms someone.

Do criminal record searches, however, mean that applicants who had a brush with the law will never find a good job, or that employers are assured that they will never hire a criminal? The answer to both is no.

When private employers check criminal records, they normally do not have access to governmental criminal databases (unless the position qualifies for a fingerprint check, such as teachers or child-care workers). Private employers can check criminal records only by going to individual courthouses and looking through the records that are kept by each court. Since there are more than 10,000 courthouses in America, a nationwide criminal check is not practical.

To determine where to search, employers will examine the resume or job application. They can also review records kept by credit bureaus that list addresses associated with Social Security numbers, and they need to verify past jobs to confirm where a person has been and to make sure there are no unexplained gaps in employment. Even with these precautions, however, records can be missed.

When a company hires a service to perform the search, it is regulated by the federal Fair Credit Reporting Act. Searches can be conducted only if an applicant provides written consent. If a criminal record is found, applicants must be given an opportunity to question its accuracy and must receive a copy of their legal rights before the decision to deny the job is made final.

Because of the way public records are maintained, errors are always possible, and cases of mistaken identification have occurred. There are also legal limits on how far back court researchers can go in reporting convictions.

Despite these limitations, employers still find criminal record searches valuable. A search for criminal records discourages applicants with something to hide and limits uncertainty in the hiring process. It also shows that an employer exercised due diligence.

Even if there is a criminal record, there are legal limitations on what information can be used by an employer.

First, an employer may not ask about or consider information about arrests or detentions that did not result in convictions. Only convictions and pending cases can be considered.

Second, an employer may not consider crimes that have been sealed or expunged, or where the applicant participated in a special pretrial alternative program.

Third, there are limits concerning misdemeanors. Most employers will ask about both felonies and misdemeanors on applications, but a misdemeanor cannot be considered if probation was completed and the case dismissed, or for minor marijuana offenses more than two years old.

If a criminal conviction or pending case is located, does that necessarily mean that an applicant is eliminated? The answer again is no.

Courts have found that a policy of automatically denying employment can result in discrimination against certain groups. Instead, employers must examine whether there is a sound business reason to not hire an individual with a criminal record, taking into account the nature of the offense, whether it is job-related, when it occurred and what the person has done since.

What should applicants do if they are concerned about a criminal matter?

First, ask an attorney if the criminal record can be expunged or set aside by going back to court, or whether it is the type of offense that an employer may legally ask about or consider.

Second, applicants can seek to rebuild their resumes by finding employment with people they know, or with employers in a tight job market willing to give them an opportunity.

Finally, honesty is always the best policy. A criminal matter honestly explained during an interview may have much less of a negative impact than hiding it and having an employer discover it later. If an employer discovers an applicant was dishonest, the denial of a job could be based upon a lack of honesty, regardless of the nature of the offense.

© Copyright 2008, Employment Screening Resources, Inc.  All Rights Reserved

Protecting Yourself When Inviting Workers Into Your Home — Five Easy Steps

By Les Rosen

Attorney at Law and President,
Employment Screening Resources

The news has been full lately of horror stories about innocent and unsuspecting people who opened their doors to home service providers or workers, and became the victims of serious crimes, including murder, right in their own homes. Many people routinely allow workers in their homes to perform a multitude of tasks. Workers come into homes to deliver appliances or furniture, act as nannies or caregivers, clean carpets, make home improvements, perform household repairs such as plumbing or electrical, and a multitude of other tasks.

Unfortunately, people can be particularly vulnerable in their own home. Help is harder to get, and if there are children, senior citizens or a disabled person at home, the risks can be even greater. Yet no state currently requires most workers who enter homes to have background checks. The results have been tragic.

Until there is a better solution, Employment Screening Resources (ESR) recommends the following five easy steps for people to protect themselves in their homes:

1. Deal only with reputable local businesses that do background checks. Before letting a stranger into your home, insist upon knowing the hiring polices of the company you are dealing with. A business should be able to tell you what precautions they take in hiring someone they plan to send inside your house. If the company you are talking to does not know the specifics, make them find out before you let their workers into your home. The important point is to determine if they check all past employers for AT LEAST 5 years (and 7-10 is better). Also, do they check for criminal records where a person has lived or worked for the past seven years. If the carpet cleaning firm, plumbing company or other service business will not give you the answers you need, then call someone else. It's just a matter of time before businesses get the message that safety is critical. In addition, being "bonded" is not always the same thing as being safe. The fact that a person has a bond does not mean that any firm has run a background check.

Also, don't let a small business tell you that it is too expense or difficult to practice safe hiring to make sure they are not sending a dangerous person into your home. That is simply not true. There are a number of steps any small business can take to make sure they are hiring safe and qualified people that cost next to nothing. It's just a matter of having a commitment to customer safety, as opposed to just hiring anyone they can find to do the job. See ESR article: "Five easy steps every small business can take TODAY to protect themselves and the public."

2. If you are hiring an individual and not a firm, what do you know about them? The best protection is to do past employment checks or reference checks on people who dealt with them in a business capacity. If you know that a person has been gainfully employed for the past few years, it lessens the possibility they have been incarcerated for a serious offense. Make sure they check out. If it does not seem right, then find someone else. A professional screening firm or private investigator can also be contacted to perform a criminal check.

3. For a sensitive position such as a nanny or caregiver, spend the money it takes to do it right. Contact a pre-employment screening firm or private investigator to check out the person. The most critical checks are past employment to verify where the person has been as well as a criminal check. When the well being of loved ones are on the line, the extra investment in security is well worth the small costs involved.

4. Use common sense. You may not check out everyone that comes to your home. A business for example, may come to your home just once to briefly drop something off or make a home repair. BUT use common sense. Have other people around if possible. Do not leave confidential information (such as checkbooks or credit card bills) or valuables lying around. In addition, do not tell store clerks or a person making a one-time visit anything confidential about your personal life, habits or customs that could make you a target in the future. For example, you don't need to tell a stranger if you are leaving town, or give information about your usual schedule, or if people you live with are away. And if you are uncomfortable for any reason, or something does not seem right, do not let the person in.

5. False sense of security--Be careful about do it yourself Internet solutions. There are some Internet sites that seem to suggest that they offer a national criminal record search. Unfortunately, a person may be lulled into a completely false sense of security if the name they are searching does not appear on one of these databases. In fact, the appearance of a person's name on a database is not an indication the person is criminal any more then the absence of a name shows they are not a criminal. Why? Because these Internet services are based upon databases that are best used by professional investigators or screening firms in conjunction with a number of other tools. The databases by themselves are not an authoritative source. Many of the Internet databases are names assembled from correctional or law enforcement databases, or from court repositories that are only as accurate as the individual counties that report records. There is no way to know if the records are complete, accurate or up to date, or if the record is even about the person you are looking for. Actual court files normally must be obtained to locate identifiers. In addition, there are large holes in the geographic coverage.

A consumer is much better off contacting a professional who knows how to utilize such databases, as well as numerous other tools in order to do a legal background check.

ESR is currently working on proposing legislation that would requires business to either engage in a background check of workers who go into homes or to provide consumers a notice that no checks been done. Until there is a better solution, consumers need to empower themselves by not hesitating to insist upon safety.

© Copyright 2008, Employment Screening Resources, Inc.  All Rights Reserved

Special Report: International Background Screenings

Many firms are finding that they have a need to conduct background screening on individuals from other countries. This can occur in two situations:

An American company is considering a job applicant who was born abroad, and has not been in the United States long enough to rely solely upon checking American references and records;

An American company is hiring an individual in another country to work in that country, such as outside sales or marketing representative.

Types of International checks:  Screening versus Investigation

There are two types of international services an employer may utilize. The first type is an international employment screening. The second type is an international investigation.

For most employers an international employment screening involves verifications of supplied information, as opposed to an active investigation to locate information. In other words, an employer will have already obtained from an applicant the name, addresses and phone numbers of previous employers or schools. Also, the employer will have obtained locations where an applicant has lived, worked or studied, which is important to know where to conduct criminal searches. The employer does not need to hire an international investigator to locate that information. In other words, an international investigation typically involves an investigator working in the country where the investigitns is being conducted.  When an employer utilizes a screening firm, there is not necessarily an agent on the ground in the country where the information is being obtained.  It is often obtained by contact with courts, employers and schools done by phone or e-mail.  For that reason, an international investigation typically is considerably more expensive then a screening. 

A typical international screening will consist of contacting the employers and schools that have been supplied, and conducting a criminal check to the extent possible in that country. A screening may also include if available a driving record and credit report.

If an employer is filling a highly sensitive potion, or is conducting a due diligence investigation of a potential business partner, then the services of a qualified investigation firm is needed. ESR only conducts employment screening. If an investigation is required, ESR will assist the employer in obtaining qualified professional assistance.

In addition to the screening tools available from ESR, there are other steps an employer can do when hiring a person who has spent time abroad:

1. Even though the person's time in the US may have been limited, do whatever background checking is possible based upon their time in the US. It demonstrates due diligence by documenting the fact that an employer did what they could do.

2. Even if a person is relatively new to this country, ask for the name of personal references that are in the US. However, be sure to also document the relationship between the reference an the applicant. Although this is not a perfect solution, an employer demonstrates due diligence by making and documenting an attempt to do a screening

3. If hiring a number of applicants from abroad, state in the Release form that you will also conduct background investigations of any countries where an applicant has lived in the past seven to ten years. This can have the effect of discouraging applicant with something to hide. However, this should be worded carefully, so that an employer does not imply that any hiring decision are being made based upon country of origin or ethnicity.

Special challenges when performing international backgrounds screenings:

When performing international checks, the following are some of the special challenges that are faced:

Each and every country is completely different. Techniques and information that are taken for granted here in the United States are often times not available abroad. Outside of the United States, there is generally very limited access to public records and the types of information needed for background screening. Each country has its own laws, customs and procedures for background screenings. Criminal records can be a challenge. In many countries, it is extremely difficult to obtain criminal records. There are parts of the world where such record are not available without retaining a local private investigator that has their own resources. In other countries, such as Canada, a person may apply themselves for a certificate of good conduct from a local police agency.

Practical difficulties:

Language barriers: Although all investigators utilized by ESR can communicate in English, that is not normally their first language. In addition, technical words can lead to some confusion. In addition, language can become an issue in communication with foreign schools and employers. The can also be language issues in reviewing court documents for criminal record searches, although ESR criminal researchers will provide translations of any court documents.

Differences in courts and criminal systems: In doing international criminal searches, each country has its own legal codes, definition of crimes and court system. International criminal checks requires an understanding of each country's court system, how criminal records are created and maintained, where searches should be conducted, the type of records that are available and what the records mean.

Time differences: When communicating with researchers, past employers or schools around the world, there can be delays due to time differences. This can add lag time to the reporting process.

Means of communications: Each country will have different means of communication. Although e-mail would be preferable, not all countries have reliable e-mail delivery. Communications are normally done by fax machine.

Calendar: Since each country has its own holidays, sometimes communications are delayed because of a country's calendar, or some other internal problem.

Locating phone numbers for employment and educational checks: To conduct an international verification efficiently, it is important to have the applicant provide as much information as possible. It is not practical, for example, for an American firm to attempt to call a foreign country to locate the past employer's phone number. ESR will typically need permission to contact the applicant directly in order to obtain any additional necessary information.

Legal: It is important to stay within legal guidelines that are applicable in both the US and the foreign country. For example, when obtaining information form an applicant about past employment or education abroad, it is important not to refer to the country as their country of origin. That would likely be a form of discrimination since such a statement can imply that the employer is considering ethnicity or country of origin as a factor of employment. Instead, and employer should refer to any screening outside of the US as simply an "international screening." In addition, it is important not to perform any type of check that would be an invasion of privacy, or contrary to the laws of either the US or the foreign country.

Payment: If ESR needs to help an employer arrange for the services of an investigator abroad, then in many countries, payment must be made in that country's currency. Some investigators require that some or all be paid in advance. ESR can arrange payment through an international wire transfer (which currently costs $40.00, depending upon the bank). Or, ESR can obtain a money order in the foreign currency (currently at a bank fee of $7.50) and send it by means of DHL.

Costs: International screenings are normally much more expensive then a comparable investigation in the United States. Because an employment screening will normally consist of verifying supplied information, the pricing can be kept more reasonable. However, even verifying supplied information can be expensive for the reasons indicated above. For some countries, there is also a translation fee.

Exact fees vary by counties. In many countries, criminal searches must be conducted in each relevant location where a person has lived worked or studied. There are very few countries that have a true "national" or "official" criminal search. The searches are usually limited to felonies or serious matters. However, even though the system for international criminal checks is not perfect, this still allows an employer to both demonstrate due diligence in the hiring process, an to also discourage applicants with something to hide, since all checks are conducted pursuant to a signed release under the Fair Credit Reporting Act.

Please contact ESR to for pricing for each country where a criminal record check is needed.

In addition, ESR charges a set fee for each international employment and educational verification, plus long distance phone charges and interpreter services where necessary. This service requires that an applicant provide the correct phone number of the employer and school to be contacted.

ESR can also access international databases such as the International Wants and Warrants database from Interpol, the international police organization sponsored by 179 countries. As with any database, the presence of a name in the database does not mean the person has a criminal background, and the absence of a name does not mean that a person is safe. However, the Interpol database is a valuable tool used in conjunction with other screening tools.

Countries where ESR can assist an employer include: India, most European countries, Philippines, Japan, South Africa, Hong Kong, numerous countries in Central and South America, Indonesia, Canada, Mexico, Israel, Taiwan, New Zealand, Australia, Malaysia, and numerous others.

© Copyright 2008, Employment Screening Resources, Inc.  All Rights Reserved

Risk Management and Pre-employment Screening for Hospitals and Health Care Organizations—A Critical Responsibility

A Special Report By Hire Safe Health Care, a division of
Employment Screening Resources (www.ESRcheck.com)

1. Risk Management for Hospitals and Health Care Providers

Financial liability for acts and misconduct of its employees is becoming one of the most significant areas of exposure for health care organizations. The exposure occurs because a hospital can be held liable for injuries resulting for it’s failure to adequately screen the employees that it hires.

According to one study conducted in 1993, health care providers paid out over one hundred million dollars ($100,000,000) in damages resulting from claims of injury from a hospital or health facility for hiring someone with a criminal record. The average settlement was $200,000. There is no way to even calculate the cost in terms of negative publicity and loss of trust, as well as the pain and suffering caused to the victim and their families.

The losses and exposure occur when a hospital fails to implement a program to adequately pre-screen job applicants for all job categories. In all fifty states, employers have a legal duty to exercise due diligence when it hires, which mean taking a reasonable measure of care. An employer breaches that duty of care when the employer knows or should know facts that would warn a reasonable person that the employee presents an undue risk of harm of third parties or co-workers in light of the work to be performed. By engaging in a background check, a health care organization agency demonstrates that it has taken reasonable steps to insure that a job candidate is safe.

According to an article in Nursing Management magazine:

"In the cases where employees have been injured in the workplace by co-workers, and it is later discovered that the company did not check references and criminal convictions or get a background report—which would have readily disclosed that this person had a problem—the companies have been sued for negligent hiring." (Nursing management, April, 1996)

Where the injured party is a patient, the hospital’s exposure can be even greater. Hospitals have a special duty of care toward patients, especially a patient who, because of their illness or condition, are particularly vulnerable to violence, abuse, theft and other acts.

Health care experts agree that in today’s litigious society, hospitals can no longer survive without a risk management program that includes background screening. According to a recent article in Healthcare Risk Management:

"In the past, most organizations relied heavily on employment interviews or personal profiles to determine an applicants potential honesty quotient. In the era of corporate compliance, health care organizations must take a much more aggressive approach to screening applicants. Building an effective screening program involves taking a fresh look at existing approaches and investigating the applicant’s work background completely. This is a new, and in some cases distasteful, departure form previous employment methods." (Healthcare Risk Management, May 1998)

2. Advantages of a Pre-Employment Screening Program

Without a screening program, there is a statistical certainty that individuals with serious criminal records will be hired by hospital and health care organization. Nationally, it is estimated that at least 10% of job applicants have criminal records that would affect job placement. A hospital or heath care organization that does not do background checks is playing Russian Roulette with its financial future.

According to Staffing Industry Review Magazine (November 1999), companies that fail to engage in a risk-management program of pre-employment screening can experience some of the following:

• Lawsuits by employees or third parties
• Workplace violence
• Unqualified employees
• Lost business and customers
• Theft, embezzlement, or property damage
• Negligent hiring exposure
• Sexual harassment difficulties
• Financial losses
• Fraudulent claims
• Time wasted in recruiting, hiring, and training.

These negative effects can be limited to a great degree by pre-employment screening. Hospital and health care provides obtain four benefits from a screening program: 

1. To discourage applicants with something to hide. Just having a pre-screening job program discourages job applicants with a criminal background or falsified credentials.

2. To eliminate uncertainty in the hiring process. Many employers have learned the hard way that relying on instinct alone is not enough.

3. To demonstrate Due Diligence. A screening program demonstrates that an employer has taken reasonable steps in their hiring process, and affords a hospital or health care provider substantial protections in the event of a lawsuit.

4. To encourage honesty in the hiring process. Screening not only discourages the wrong kind of applicant, but encourages the right applicant to be open and truthful. This introduces honesty into the application and interview process. Employer’s find that just having a background program will encourage applicants to be more forthcoming about their history.

3. Office of Inspector General Excluded Parties List

In addition, pre-employment screening can assist hospitals and health care providers in compliance with governmental regulations and accreditation. One of the most important issues for hospitals is a review before every hiring decision of the Medicare Sanction List of Excluded Individuals and Entities. The Federal Department of Health and Human Services, Office of Inspector General (OIG) maintains that list. It contains listing of all institutions and organizations that are excluded by law from receiving any federal monies, such as Medicare and Medicaid.

Most critical for hospitals and health care providers, federal law provides that federal monies will not be paid to any entity in which an excluded individual is serving as an employee, administrator, operator, or in any other capacity, services that are furnished on or after the effective date of exclusion. For a hospital or health care organization that hires a person on the excluded list, there can be tremendous financial repercussions. A pre-employment screening firm can also assist with accessing this database as well.

4. Mechanics of a Risk-Management Pre-Employment Screening Program

Screening normally occurs after a company has decided that an applicant is a good prospect and wants to verify that their hiring assessment is correct. Typically, a hospital or health care provider will make the written consent forms part of the employment application. An applicant with something to hide is discouraged from applying in the first place. Once an applicant becomes a candidate, the forms are already signed and on file, and can be transmitted to the background company for immediate processing.

Screening does NOT invade an applicant’s private life. A screening and credentials verification program seeks to confirm what an applicant has done in their public or professional life, such as previous employment, criminal and civil court records, credit history, driving records, and educational or professional credentials verification. An employer is entitled to obtain job-related information in order to make the best possible hiring decision.

It is also important to note that screening is not an absolute guarantee that a bad hire will not occur. For the price charged by screening companies, employers do not receive in-depth FBI type of reports. But, the program goes a long way to minimize risk at a reasonable cost.

In a pre-employment screening program, all of an applicant’s legal and privacy rights are protected. Pre-employment screening is governed by the federal Fair Credit Reporting Act (FCRA). Before a screening is initiated, an applicant must sign a written consent. In the event negative information is uncovered, an applicant must receive a copy of the report and a statement of their rights before an adverse decision is made. This gives the applicant an opportunity to object in the event any information is inaccurate or incomplete.

The turnaround time for a screening is typically two to three business days. If a screening company is also used to check references, than it can may take an additional day if previous employers delay in returning phone calls.

In terms of cost, a typical screening program will normally be less than what a new employee is paid on just the first day on the job. Hospitals and health care providers that perform pre-employment screening find that this amount is minimal compared to the damage that just one bad hire could cause.

5. Recommended Steps to Consider When Initiating a Pre-Employment Screening Program for a Hospital or a Health Care Provider

The following steps are recommended in instituting a pre-employment screening pogrom for a hospital and health care provider:

1. Implement A Policy And Educate Hiring Managers About The Policy And Program

   Before implementing the program, the hospital or health care provider must prepare a policy statement that clearly outlines the organization’s commitment to hiring the most qualified individuals in a safe and secure environment that benefits healthcare providers, patients, and the community.

   Before starting a pre-employment screening program, it is generally advisable to communicate to all hiring managers and department heads exactly what the program is all about. Managers need an opportunity to "buy-into" the program. Managers are more likely to assist in the implementation of the screening program once they understand that it is a benefit to them and the organization, that all applicants legal rights are respected, that it does not increase or ad to their administrative burden, and that ultimately, a screening program is a critical part of a hospital’s risk-management survival.

   Employment Screening Resources is able to assist a hospital or health care organization in drafting policies and procedures to meet an organization’s needs.

2. Determine The Level Of Screening, And What Is Performed In-House And What Is Outsourced

   As part of developing policies and procedures, an organization needs to make two decisions. First, the organization must decide what level of screening is appropriate for each position. The screening can vary by position, as long as for each position, there is a consistent program. In other words, an organization can do less screening for cafeteria workers than for medical technicians, but all cafeteria workers and all technicians must be treated the same. A screening provider can assist a hospital or health care provider with suggested levels of screening.

   Secondly, a hospital or health care provider should determine what part of the screening program to perform in-house, and what aspects should be outsourced to a professional screening company. That is purely a matter of the time and resources that the human resources department of a hospital or healthcare provider has available, and what portion is more cost–effective to outsource.

   For certain tasks, such as criminal records checks, nearly all organizations that have reviewed the process outsource that task. That is a highly specialized service that requires unique resources and skills. Furthermore, it is heavy legally regulated. Also, by outsourcing that task, an organization can operate under the legal protection of the Fair Credit Reporting Act.

3. Selection of a Service Provider

In choosing a company to provide pre-employment services, a hospital or health care organization should use the same criteria that is utilized in selecting any other provider of human resources services:

1. Expertise--A screening service must have the proven ability and knowledge to provide this professional service. A review of the company’s web site and materials, as well as contacting a firm’s current clients for a professional reference can be helpful in establishing a firm’s qualifications.
2. Legal compliance--There are numerous issues surrounding legal compliance. A screening service must understand the laws surrounding pre-employment screening and hiring, and make a commitment to provide an organization with only the information an organization may legally possess.
3. Personal Service and Consulting--It is critical to keep in mind that pre-employment screening is much more then just providing raw data. An organization should look for a firm that is available to provide personal service to the hospital or health care provider. A screening company should be able to assist the human resources department in the same manner that any other consultant is available. The human resources department should expect immediate assistance on any special situations that arise, or if assistance is needed. An organization should stay away from any service provider that is merely in the business of selling information and data.
4. Training--A service provider should be able to work directly with the human resources department and to conduct whatever on-site training and orientation is necessary.
5. Familiarity with the health care industry-It is important to choose a firm that is familiar with the health care industry, and is working with other hospitals and health care providers.
6. Pricing--Although it is important to obtain competitive pricing, it is usually not advisable to choose the lowest cost provider. As the old saying goes, you always get what you pay for.
7. Performance Guarantee—A service provider should provide an on-time performance guarantee so that all reports are returned timely.
8. Internet options—A service provider should be able to provide reports and service with an Internet option in addition to faxing reports.

4. Attach Required Release Forms To All Applications

   After policies have been developed and introduced, and a determination has been made as to which services are to be provided, the screening provider should then create customized release forms that are attached to each application. Most organizations implement a screening program by selecting a start date after which all new applicants are screened. For a variety of reasons, most organizations do not attempt to screen existing employees.

5. Set-Up Method To Coordinate Background Reports From One Office

Most organizations will designate a person or a group to co-ordinate the screening. Typically, once a hiring manger has made a selection, the job application and signed release forms are is forwarded to the human resources office. At that point, HR will review the application and release forms for completeness and then forward to the screening provider. It is usually advisable that all background reports remain with HR, and be maintained in a secure file, apart from the employee’s personnel files.

If the negative information leads to a decision not to offer employment, the screening provider should assist the organization in the necessary procedures. These consists of sending the background report to the applicant along with a statement of rights, and asking the applicant to contact the screening provider if they feel that anything in the report is inaccurate or incomplete. If the decision is made final, a second letter must then be sent. A screening provider should assist an organization in setting up these procedures.

For more information on implementing a pre-employment screening program as part of the risk-management strategy for your hospital or health care organization, please contact Employment Screening Resources (ESR). ESR is a full service pre-employment screening firm that specializes in legal compliance, consulting and training, guarantee turnaround time and instant Internet access. See our web site at www.ESRcheck.com for more information about background screening.

© Copyright 2008, Employment Screening Resources, Inc.  All Rights Reserved

Candian Court Records

Canadian court records are public information. The court system in Canada is similar to the U.S. system in that there is a federal court system with a supreme court and there are provincial systems with upper and lower courts.

An informative resource about the Canadian Court System, including how organized, is the Department of Justice. Go to www.justice.gc.ca/eng/dept-min/pub/ccs-ajc/.

Below are links to the judicial systems of each province. The links will lead to extensive information about each province’s system including some online accessible databases.

Alberta – www.albertacourts.ab.ca

British Columbia – www.courts.gov.bc.ca

Manitoba – www.gov.mb.ca/justice

New Brunswick – www.gnb.ca/cour/index-e.asp

Newfoundland – www.justice.gov.nl.ca/just

Northwest Territories – www.nwtcourts.ca

Nova Scotia –www.courts.ns.ca/

Ontario – www.attorneygeneral.jus.gov.on.ca/english

Prince Edward Island –  www.gov.pe.ca/courts

Quebec – www.justice.gouv.qc.ca/english/accueil.asp

Saskatchewan –  www.sasklawcourts.ca

Yukon –  www.justice.gov.yk.ca/prog/cs/courts.html

© excerpt from Business Background Investigations book.