By Fiona Soltes

Anyone who pays attention to the news has seen it: Regardless of industry or location, there’s an increasing need to do whatever possible to create a safe environment for employees and customers alike.

Background checks are a significant tool in the toolbox, helping employers better understand just who is onsite. Technology and available data make them easier than ever to perform –whether one-and-done before a hire or on an ongoing basis throughout each employee’s tenure, depending on the job. Even so, precautions and care must be taken to ensure efforts stay on the right side of privacy laws. The involvement of an attorney is paramount, the experts say – as is the need for a consistent, carefully thought-out and clearly communicated plan.

“Contrary to what people might think, this is a heavily regulated area,” said Elizabeth McLean, a Fair Credit Reporting Act (FCRA) compliance attorney who serves as general counsel for background screening services provider GoodHire. “There are a lot of laws that can get employers into trouble when hiring. I do recommend that folks find an expert to help them.”

Do a quick online search for providers and offerings, and a number appear. That said, they don’t negate the need for legal advice and oversight regarding policies and procedures.

Available technology, McLean said, can be both “good and bad” in the screening space. It’s true that it can return results more quickly, and reduce the time between, say, interview and hire. There is, however, the risk of losing accuracy, as well as the potential for shutting out candidates that might otherwise be great hires. The key is that technology be used responsibly by screening companies in a way that balances speed with accuracy and fair treatment of candidates.

As for potential legal pitfalls, they may have to do with, for example: what information is sought; what level of permission has been granted by the potential hire/employee; how any information gathered is stored; and whether the potential hire/employee has been notified of anything discovered.

Then, of course, there are issues of potential discrimination, especially in the area of prior convictions.

Context is always important, McLean said, and this is one of those things that a business has to take the time to think about.

It’s critical to understand that a disproportionate number of people of color have been profiled by law enforcement and arrested, she said, a fact recognized by the Equal Employment Opportunity Commission.

To help combat the issue, 35 states, the District of Columbia, and more than 150 counties and cities have adopted some sort of Fair Chance or Ban the Box policies. Fair Chance policies require criminal background checks to be delayed until after an applicant meets the basic criteria for a job. Ban the Box efforts are aimed at removing check boxes from employment applications that ask about criminal records. Ultimately, these policies operate under the guidelines that if ex-offenders can work, they’ll be less likely to return to prison.

Also, if hiring a company to help with background screening, make sure they have transparent, fair and flexible practices. That might equate to candidates and employers receiving real-time updates throughout the process; candidates having the chance to provide context for anything that is uncovered, humanizing the process; and candidates being allowed to use any device they want to enter and access information.

McLean said she hasn’t noticed many changes in the type of information that is being requested in background checks. That said, there is an area that is rapidly shifting: drug testing. The increasing legalization and popularity of different cannabis products – including medical marijuana – has caused challenges for some who test for the drug. GoodHire developed a drug screen that excludes marijuana, avoiding the issue altogether.

In the past, companies might have been more likely to screen only at the time of hire, or perhaps once a year. Some companies – such as mobile services or those who hire drivers – now perform ongoing checks for violations. That might mean a couple of times a year, she said, or even every month.

Betterteam, a job-publishing tool and web-based applicant tracking system, recently posted an article on how to do employee background checks. A typical background check, according to the organization, includes: a criminal records check; Social Security validation; address history check; U.S. terror watch list check; and sex offender registry check. Regardless of which components are included or left out, however, background checks should be used for every candidate rather than just some, Betterteam advised, and candidates should have an opportunity to respond to any information found. It’s important that the company knows what information they’re allowed to request according to state laws, and that they notify the applicant a check is being performed, too.

Betterteam advises working with a search firm rather than handling the task inhouse. “It will cost you less than $80 per candidate, you can rely on the information, keep yourself from seeing the information you’re not supposed to, and get much more in-depth.”

Keep in mind, however, that this cannot be done without permission from the candidate – in writing. “You’ll need written permission if you want to hire an outside company to investigate, want to do a credit report, want access to school transcripts or want access to detailed military records,” Betterteam said. “If you have made a reasonable request, and the employee denies permission, you can legally take the candidate out of consideration for the position.”

A 5-STEP PROCESS

Charlie Corbin, human resources director at Express Wash Concepts, said his organization has outsourced background checks for its 227 employees. Job candidates typically are gathered though online postings, given a phone interview, and then presented to the site manager for an interview if they continue progressing. Then, if that interview goes well, they not only go through a background check, but also are given a behavioral ProScan Survey.

“It just gives us an opportunity to build an even better and fairer picture of the people that we’re hiring,” he said. “It’s another tool.” The survey, designed by PDP Global, asks respondents to react to 60 different adjectives. The answers then provide a measure of traits such as dominance, extroversion, pace, conformity and logic. The survey is easily accessible online.

The survey – and the background check – are each only performed once – at the time of hire. Team members sign permission forms for the check, which is submitted on the third-party website, he said, and the main thing it looks for is criminal history. But even if something is discovered, Corbin said, it doesn’t necessarily affect hiring. Misdemeanors are different than felonies, and there’s also the opportunity for context.

“If someone is 35, 40, and something happened in their early 20s, if it’s nothing significant and the person is upfront with us, there may be that consideration … My personal thought is that everyone should have the opportunity to be able to move forward,” Corbin said. “I truly believe that whenever your debt to society is paid, you should have those opportunities. But you do have to be sensitive, and the individual, too, has to understand that we have to be sensitive to the business, and to the role that they’re going to be playing.”

On the part of employers and employees, however, there appears to be a growing understanding of the need for checks – and for conversations.

“We, as a society, understand that there is a need for creating trust and safety in the workplace,” McLean said. “I’m happy to know that my fellow colleagues have been screened.” Screening not only signals to employees that they are cared for, but it shows that the public is cared for, too.