Articles - Compliance and Legal

For business of all size, pre-employment background checks has become mission critical to ensure an organization does not go through the legal and financial nightmare of hiring someone that is dangerous, unfit, unqualified or dishonest. However, there are a number of myths and misconceptions about background checks.  Here are eight simple things that Human Resources professionals and employers need to know about background checks.

1.  It does not matter how good you are at interviewing, “gut instincts” are not enough:

There is a growing body of scientific evidence that suggests that human beings are not nearly as good at detecting liars as we think.  The old phrase, “Trust but Verify,” applies when hiring for a sensitive position.

2.  The higher the risk, the more due diligence is needed:

Where hiring someone to work with vulnerable people, a higher degree of due diligence is needed.  For example, infirmed individuals in a home are vulnerable, requiring a higher duty of care in selecting workers.

3.  Don’t let the term “background check” give you a false sense of security:

The term  “background check” all by itself is meaningless.  It can mean anything from a near worthless online database search all the way to an in-depth private investigation.  You need to know what type of background check was done, and the qualifications of the firm that performed it. Look for firms that are accredited by the National Association of Professional Background Screeners (NAPBS), such as Employment Screening Resources(www.ESRcheck.com)

4.  Background checks are not perfect:

Even the FBI and the CIA do not always get background checks right.  Although mistakes are uncommon, there are technical reasons why a person can come up “Clear” when in fact they have a criminal record.  The crime may have been committed in a county not searched, or the applicant switched around their last names.   Also, keep in mind that a person that has never been convicted before may commit a crime or abuse a vulnerable person. 

5.  Whatever you do, stay away from cheap online databases:

There are numerous web sites that purport to give online background checks.  You are better off putting your money on red in Las Vegas.  These “online” sites have practically no value in California, and other states.  They are only useful to background check firms as another research tool.  Most of these online sites do not even bother to inform employers of their legal obligations under the Fair Credit Reporting Act (FCRA).

6. If doing a background check, the gold standard is county by court, supplemented by other searches:

Unless you are authorized by law to use LiveScan for fingerprints, the only in way in California to check a criminal report is to search at the county court level for each county where a person has lived or worked.  Period! Anything short of that may be useless.

7. Don’t forge the legal stuff:

If you are an employer doing a background check, you must sign a certification with the background screening firm and have your applicant sign a Release and Disclosure form.  A background screening firm will provide those documents.  This is taken very seriously, especially in California.  An alternative is to have a person obtain their own background check report form a website such as http://www.MyESRcheck.com.

8.  A background check, no matter how good it is, is not enough all by itself:

The best things in life are free, and the most effective tools to keep your home and business safe are free.  It really revolves around the employment application, job interview, and past employment verification process.  If you do those things well, the chances of hiring a bad employee are greatly reduced.

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BIOGRAPHY

Lester S. Rosen is an attorney at law and president of Employment Screening Resources (ESR) , a national background screening firm headquartered in Novato, CA. See; www.ESRcheck.com

He has authored two books on screening and hiring: “The Safe Hiring Manual: The complete guide to keeping criminals, terrorists, and imposters out of your workplace," and “The Safe Hiring Audit: The employer’s guide to implementing a safe hiring program."

He is considered an expert in employment screening background checks, and is a speaker frequently at nationwide human resources, fraud and security conferences. >>>

He has testified as an expert on employment screening background checks in negligent hiring cases in California, Florida and Arkansas.

He was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) and served as its first co-chair.

Mr. Rosen graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis School of Law, serving on the school Law Review. While practicing law, he specialized in criminal law and his practice has included federal crimes and death penalty cases. He holds the highest attorney rating of A.V. in Martindale-Hubbell. He has served as an adjunct professor of law teaching criminal law and procedure at Hastings College of the Law, and served as faculty member and program chairman of the Hastings College of Trial Advocacy in San Francisco.

He has also been active in working on legislation in California. In 2002, he worked with the California legislature to amend AB 655, a law that adversely affected employers in the area of reference checks and hiring in California. He continues to be involved in working on California legislation effecting employers.

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