The Safe Hiring Blog

More States Step Up Fight Against Diploma Mills

On March 24, 2011, Idaho's "Anti-Diploma Mill" bill was unanimously passed by the Idaho State Senate. To read a recent article about this and efforts by other states, visit the Accredibase Reports web page at www.accredibase.com/report.

Optimizing Employee Selection by Using Online Referencing Tools and Background Checks

Provided by ESR Newsletter and Legal Update.

 

The perennial challenge for employers is how to identify applicants that are the right fit and have the knowledge, skill, and abilities to do the job. In pre-industrial society, the problem was generally solved by either hiring someone that the employer knew, or basing the hiring decision upon a personal recommendation. Another method was using an apprenticeship-type program that gave an employer a great deal of insight into who they were hiring.
 
Although these approaches are still in use today, it is no longer possible to match millions of applicants and jobs based upon the employer having a pre-existing relationship with applicants. Additional approaches such as using the Internet to find good candidates have developed.  Since every time an employer hires a stranger, it is somewhat of a "leap of faith," employers need tools to make good decisions. Employers are seeking ways to determine who the person really is and what the person has done in the past, as predictors of how they will perform. Although past is not always prolog, past performance says a great deal about how a person may be expected to perform in the future. Employers also want a means to "look under the hood" at applicants rather than just accepting them at face value.
 
Every hire represents a significant investment and - at the same time - a significant risk. A bad hire can result in a legal and financial nightmare. Bad hires cost an employer a great deal in terms of time wasted recruiting, hiring and training, and searching for a replacement, not to mention the job not being done. A bad hiring decision can also lead to litigation for negligent hiring, if the new employee turns out to be unfit, dishonest, or dangerous, and someone is harmed. To add insult to injury, when the bad hire is eventually terminated, employers need to deal with the possibility of a wrongful termination lawsuit even if the firing is entirely justified.
 
In order to evaluate the various hiring tools, it is essential to understand that the hiring process occurs on a time line. Each step of the continuum carries its own set of legal implications. Matching your hiring tools to the proper stage of the time line is key to sorting out the best applicants AND to helping prevent a bad hire.
 

The stages and available tools of the hiring process can roughly be divided as follows:

1. Sourcing Stage: This is the process of gathering potential applicants through a variety of means that can include inbound applications from job boards, websites, newspapers, or outbound efforts, such as recruiters seeking passive candidates;
2. Preliminary Screening Stage: In order to narrow down the applicant pool, there is a preliminary screening primarily based upon the applicants' self-stated qualifications, conveyed by the resumes or applications or newer tools such as video websites;
3. Assessment Stage: This stage can include the interviewing process to further narrow down the field of candidates, as well as numerous other assessment tools, ranging from objective testing to references from past employers or supervisors, or various other testing methods;
4. Decision Process Stage: Here, the employer has narrowed the pool to one, two, or three finalists and is moving toward a conditional job offer based upon an internal decision-making process;
5. Background Checking Stage: At this point, either a conditional job offer has been made or is contemplated, and the employer needs to exercise due diligence, typically through a background screening firm, to determine if there is any reason NOT to hire the candidate. The emphasis of a background screening firm at this point is a factual verification of details such as job title and dates;
6. The Post Offer/Pre-Hire Stage: This is where an employer is able for the first time, if they so choose, to address such areas as pre-employment physicals;
7. The Post Hire/On-Boarding Stage: This is where an employer, for example, can complete the form I-9 process.
 
These seven stages illustrate a clear demarcation between efforts pointed at finding someone to hire, and efforts directed at deciding who NOT to hire. This is where evaluation of the pros and cons of the hiring tools comes into play. Background checks, for instance, are of little assistance in stages 1 through 5. That is because a traditional background check is only performed on finalists, where, by definition, an employer has already made a tentative decision to either hire or place that person in the group of finalists. Background checks are used to decide who NOT to hire.
 
Are there other tools available besides background checks for sorting through the pool of applicants? Yes. One of the most interesting new tools is for online automated reference checks and assessments. An example is the offering of Checkster, a company founded by a veteran in the talent management sector. Job candidates select references, such as former supervisors and co-workers, who then get an assessment request emailed to them. It's self-service. Eliminated are the time spent making phone calls and waiting for and tracking responses. The references simply fill out an email questionnaire. The questionnaire itself is a scientifically designed assessment instrument that gives a fresh look at the applicant and contains a number of state-of-the-art validation tools. The results are communicated back to a recruiter or hiring manager in a graphical and intuitive report. Although there are others competing in the same space, Checkster clearly has thought through and designed the process from both the assessment and talent management point of view.
 
The end result of using such a tool is that the reference can quickly respond to an email, and time is not wasted on playing phone tag or managing follow-ups. The employer obtains a candid assessment because the person giving the reference is advised that the actual scores are confidential. Through Checkster's processes, the email evaluations provide a scientific assessment of what is "under the candidate's hood," thus increasing the employer's odds of making a job offer to the best candidate.
 
The question has arisen from some hiring managers as to whether services like Checkster can replace the type of employment verifications performed by background firms. The short answer is no. Although services from Checkster and similar firms can be extremely valuable, they are done earlier in the time line of the hiring process. Background checks are done near the end of the time line. Traditional background checks and Checkster-type services can compliment each other, but they serve different purposes. They are different tools for different functions.
 
First, Checkster-type services occur in the talent sourcing and selection stages. Background checks, by comparison, occur only AFTER a tentative decision has been reached. In other words, Checkster-type services are used to decide who to focus on out of a pool of candidates, while a background check seeks to assist an employer in exercising due diligence by examining if there is any reason NOT to hire someone that an employer has potentially targeted for employment. Although a Checkster-type service will obviously also help to eliminate some candidates from consideration in the early stages based upon the results of the third-party reference and assessment provided to employers, there is a fundamental difference between an email-based reference service and the role of a background firm.
 
The whole idea behind due diligence as a legal defense is independent factual verification. For example, background firms do not take the applicant's word for whether the past employer even existed. A background firm will typically independently verify that the past employer existed as well as verify that the phone number is real, independent of what the applicant contends. Even if past references are contacted for evaluation purposes by email, the task of verifying the truthfulness and accuracy of the employment history still requires a screening firm to independently obtain information from past employers.
 
Another advantage to an employer utilizing traditional background checking techniques is that the employer has a powerful argument in front of a jury in the event of a lawsuit for negligent hiring that they excised due diligence. The background firm's efforts to manually verify the existence of a past employer, and then to verify that the applicant in fact worked there, is one of the most important and powerful due diligence tools in the employment process. By knowing where a person had been, an employer is able to eliminate any unexplained gaps in employment, and to also know where to search for potential criminal records. It is a well-known fact among due diligence professionals that verifying where a person has worked is just as important, and in some cases more important, than checking for criminal records. A criminal record can occasionally slip through the cracks, but an unexplained gap in employment creates a red flag that may prompt an employer to do further research.
 
If an employer is sued for negligent hiring, it is also questionable whether an employer can demonstrate due diligence if they let job seekers pick and choose which references were contacted. There is also the possibility of a fake or set-up reference, or an applicant creating a fake identity, and having the bogus ones "verified." Checkster certainly takes steps to minimize the possibility of fraud. However, in the final analysis, there is no substitute for the hard work of manual checks. By manually verifying the existence of past employers, and verifying dates of employment in order to reveal gaps in employment, an employer is taking the final due diligence steps needed before making a hiring decision final.

Employment verifications by a background firm are typically conducted in a call center environment in high volume by callers who are used to verifying factual information about an applicant's employment history. Given the highly sophisticated software and databases, as well as expertise that screening firms bring to the process of manual verification, a substantial number of such checks are completed within three working days.
 
The bottom-line is risk management. Although these email assessment tools are an excellent means of providing an in-depth assessment about a candidate during the decision-making stage, the traditional background check complements them for the final candidates and provides the demonstrable due diligence that can be used as a legal defense if there is a negligent hiring lawsuit and can help uncover fraud or fake references. 

A Tale of Two References-One Makes You Liable for Damages and the Other Does Not

In a 2008 federal appeals case, two past medical employers gave past employment information for the same anesthesiologist. After the anesthesiologist, Dr. Robert Berry, moved on to yet another hospital, he botched a routine 15 minute procedure, leaving a patient in a permanent vegetative state due to Berry’s own addiction to drugs.

The new hospital and its insurance company settled with the victim and in turn sued the previous two medical organizations for misrepresentations in the past employment information given to the new hospital. The allegation was based upon misrepresentations since the new hospital claimed it hired Berry because the defendants did not give accurate information by withholding information about misconduct and drug use.

The first defendant was a medical group that was fully aware that Berry had a drug abuse issue. After giving Berry a second chance, Berry continued to misuse drugs. Berry was terminated for that reason.

 Against that backdrop, when asked for a recommendation by the new hospital, members of the medical group made statements suggesting Berry was an excellent clinician, would be an asset to any anesthesia service and that he was recommended highly as an anesthesiologist.

 The second medical provider was a hospital where Berry had practiced. Instead of saying anything positive or negative, the hospital simply provided dates of employment and occupation. However, the hospital also claimed the reason it did not go into detail was that “there was a large volume of inquiries.” Even though the hospital gave in-depth recommendations to 13 other physicians, it appeared that the hospital did not want to say anything about Dr. Berry.

 The first hospital failed to disclose that Berry had on-duty drug use, and that his undocumented and suspicious withdrawal of Demerol had “violated the standard of care,” or provide other negative information.

 In the decision, the appeals court had no difficulty finding that the medical group was clearly liable, under the theory that once a party volunteers information, it has a duty of care to insure the information is correct. Otherwise, it amounts to a misrepresentation by material omission. The court clarified that a party does not incur liability every time it casually makes an incorrect statement. However, the court noted that:

 “But if an employer makes a misleading statement in a referral letter about the performance of its former employees, the former employer may be liable for its statements if the facts and circumstances warrant. Here, defendants (medical group) were recommending an anesthesiologist, who had the lives of patients in his hands every day. Policy considerations dictate that the defendants had a duty to avoid misrepresentations in their referral letters if they mislead plaintiffs into thinking that Dr. Berry was an “excellent” anesthesiologist, where they had information that he was a drug addict.”

 The situation with the first hospital, however, was more complicated. The first hospital knew that Berry was a potential danger, but yet chose to say nothing, hiding behind a claim that they were too busy to provide more details.

 The Court noted that it found no Louisiana case, or cases outside of Louisiana, that imposed a requirement that a past employer reveal negative past information, absent a situation where the past employer made some sort of affirmative misrepresentation. In other words, the first hospital did not have a legal duty to voluntarily step up and give negative information, as long as it limited its report to just factual employment data such as dates and job title.

 The court noted that,

 “And although the (first hospital) might have had an ethical obligation to disclose their knowledge of Dr. Berry’s drug problems, they were also rightly concerned about a possible defamation claim if they communicated negative information about Dr. Berry.”

 The Court noted that if such an obligation were imposed upon employers, there would not only be privacy concerns, but it would create a burden if employers had to investigate each time if negative matters about a past employee was the type that had to be disclosed. The bottom line: if an employer limits itself to just dates of employment and job title, it has no obligation to warn of future dangerousness, provided the employer did not falsely mislead the new employer.

 That is why so many employers choose to not say anything either way. However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Some employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.

 That is why so many employers choose to not say anything either way. A practice has developed essentially that if you do not have something good to say, then don't say anything at all. 

However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.

 Just documenting the fact that an effort was made will demonstrate due diligence. Verification of dates of employment and job titles are also critical because an employer must be concerned about unexplained gaps in the employment history.  Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.

 It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.

 The case is Kadlec Medical vs. Lakeview, 527 F.3d 412 (5th Cir. 2008)

For a copy of the case, contact Jared Callahan at jcallahan@esrcheck.com or by phone at 415-898-0044.

BRB Publications Launches New Web Page www.verifyprolicense.com Providing Access to State Licensing Boards

BRB Publications annouced today a new website that enables the public to verify individuals and businesses required to be licensed or have a certification or registration.

This free, new resource enables a researcher to check the representations people make to the public in day-to-day personal or business life. Users of www.verifyprolicense.com can choose an occupation or business category, by state, to find the direct address, phone number, and web page of the licensing or certification board. The resulting screen also provides a hot link to a License Validator to verify the license, permit, and registration information for individuals and or businesses. Another valuable feature of the search is that it often indicates when disciplinary action has been taken against an individual or business. This site is updated weekly and includes over 8,000 occupations with over 4,500 "name searchable" links providing immediate results.

According to BRB Publication’s CEO Michael Sankey, "Professional occupational licensing and non-voluntary certifications and registrations are generally a matter of public record, intended to protect the public from fraud and the misrepresentations of qualifications. It is simply a smart business practice to check on those with whom you deal, particularly if strangers come into a home, or if money and property are involved."

Also, the new website is dedicated to educating the public about The Sue Weaver C.A.U.S.E. (Consumer Awareness of Unsafe Service Employment).

About the Sue Weaver C.A.U.S.E.
On August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender. Ms. Weaver’s attacker was hired through a major department store to do service work in her home. In memory of Sue Weaver, C.A.U.S.E. was founded in 2004 as a non-profit organization that brings awareness and education to consumers and employers regarding the necessity of criminal background checks on all service employees, contractors and subcontractors hired to work in or near clients’ homes. For more information about C.A.U.S.E. visit www.sueweavercause.org.

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

Anonymous E-mail Reference Checks—Another Way to Get Sued

Employers have been presented with yet another “new” and supposedly revolutionary hiring tool—reference checking done by e-mail.  The idea is that each reference is promised that their evaluations will remain confidential and anonymous because the results are aggregated.    Job candidates are the ones that select the references that get the e-mails.  Instead of making phone calls, the references can just fill out an e-mail questionnaire.  The questionnaire is itself a scientifically designed assessment instrument that gives an assessment of the applicant.

On the surface, it can sound appealing as a reference can quickly respond to an email—no more time wasted on playing phone tag and the e-mail evaluations provides a scientific assessment for what is under the candidate’s hood.  And finally, the employer gets a candid assessment because the person giving the reference believes the actual scores to be confidential.

There are areas of concern for employers:

First, if a background firm is the conduit for such a service, it falls under the federal Fair Credit Reporting Act (FCRA).  One of the fundamental tenants of background checks is that there are no secrets.  If a candidate receives a bad score, the candidate arguably has a legal right to find out exactly what each individual reference said about them.  The problem of course is that the reference giver is led to believe that whatever they say will remain confidential.  Under certain circumstances, that simply may not be true.

Another issue is that an employer cannot conduct due diligence by letting job seekers dictate which past employers to check.  It is difficult to exercise due diligence when the applicant gets to pick and choose who is contacted for a reference.  There is also the possibility of a fake or set-up reference, or an applicant creating a fake identity and evaluating themselves.

Background firms on the other hand do not take the applicant's word for whether the past employer even existed.  A background firm will typically independently verify that the past employer existed as well as verify that the phone number is real. The whole idea behind due diligence as a legal defense is independent verification.  Even if past references are contacted for evaluation purposes, the task of verifying the truthfulness and accuracy of the employment history still requires a screening firm to independently obtain information from past employers.

Another issue is defamation. Just because an applicant signs a consent, that does not give permission for a reference to defame them with false or malicious information without liability. 

The bottom-line: Although these e-mail assessment tools may well be an excellent tool for giving in-depth scientifically formulated assessment about a candidate during the decision-making stage, their proper use should be carefully considered.  An employer should evaluate whether or not they provide protection if the employer is sued for negligent hiring and what other measures should be utilized.  Nor can a reference really rest assured that they can give anonymous evaluations without the candidate ever finding out how they specifically rated the candidate.   

This is yet another area where litigation may eventually decide what course employers should take and what rights applicants have.