Factual Employment Screening – Part Two

Thomas C. Lawson An Employment Screening Outline

Policy Development

A policy of Factual Employment Screening; Personality Evaluation/testing; and/or Drug Testing should be developed and embedded into the core policy manual rather than exist as a supplement or bulletin policy. This avoids any “after the fact” ramifications, should the policy be challenged under discriminatory theories.

The policy should have an effective date, and if the corporate philosophy is for “purification” of existing staff, then a policy implementation should be evident, along with the reasoning for the retroactive purification of the staff. This is common practice following a recently resolved internal problem, where specific numbers of staff have been terminated for one problem or another. No justification is needed when implementing new programs if the purification is in line with the philosophy of the company.

Policy Guidelines

Consistency is the key when establishing new policies, especially when said policies enter into the gray and ever-changing areas of human rights and right to privacy. For example, when establishing any screening parameter there must be absolute consistency within each specific employment class in order to avoid the obvious Title 7 ramifications. Additionally, inconsistent programs will invalidate any baseline, as companies providing employment, drug, and psychological screening have no industry-based uniformity, and new variables can enter the picture which will skew the standard.

Date of effective program

Set forth the date of management’s decision to implement the screening programs and the actual date of implementation.

Referral to Employee Classification, and overview of class requirements

These details can be included here, but are best left in general terms to allow for modification at a later date. Each class would have specific screening requirements, which would be determined by management as to job, applicability, exposure, and other employee interface. Sample general class terms include Fiduciary Capacity Employees – Non- Exempt (cash handlers and janitors with key access): Management/Policymaker (those who would set policy and those who have signing authority); Management/Mid-level (those who supervise others); and Sales Force – Outside (those who would be field personnel and those who would use company vehicles).

Formology

Forms and/or procedures applicable to each specific employment class should be developed to ensure processing consistency and provide a competent audit trail for future reference.

Referral of candidate (by name) to firms conducting various levels of screening.

This is very important as the baseline for the screening rests with the vendor since no industry guideline exists. It is also critical in combating allegations of age/policy/screening discrimination. If you are curious about changing a vendor, this should be done with a memorandum of policy modification, rather than a core change, which will survive litigation if the effective change is implemented across the board for hires subsequent to the date of vendor change. Good, Solid Factual Employment Screening is not the Ultimate Decision-Maker you are.

Policy decision

This should rest with top corporate management, or at the highest divisional levels. It should be included in the minutes of board meetings, and disclosed in publicly held (10K/10Q) firms as a negligent hiring mitigator. The policy can be used as a positive offsetter for ongoing litigation disclosure requirement in 10K/10Q.

Vendor Selection

A thorough background check on the firm supplying the service should include:

.How long in business?

.Type of criminal conviction research (hand vs. database), as well as if and
how discoveries are verified against subject identifiers.

.How deep are the research and data capabilities?

.National research capability

.Licensure designation (PI, reporting agency, credit bureau, and so forth).

.For older firms like guard service companies, how long since they “got into the fad” of employment screening?

.Press noteworthiness
.Depth of human resources vs. security experience (both is optimal).

Litigation history (errors/omissions).

Depth of professional liability insurance.

Who runs the division?

.Cost/turnaround/reporting method – raw data is instant death; a “compiled report” is best.

.Jurisdictional coverage and researcher consistency – avoid the database vendors.

.Analysis of ancillary services (i.e. How can a new private patrol operator or recently retired police officer afford to have thoroughly researched the nuances of employment screening laws in all 50 states?)

.How often is the program reviewed by counsel?

Screening Program Review

The program should be reviewed quarterly for compliance as the issues change regularly, and an antiquated policy can make the whole process suspect, if not litigable. Make sure that an updating memorandum is included in the procedure file for audit purposes.

Implementation

The human resources department should set up the program with the vendor’s assistance. Each organization will develop its own forms and procedures based on its own requirements and goals. This will entail a variety of personnel protocols, establishing contacts and liaisons between the company and the vendor, determining time requirements, and such basis mechanisms as fax numbers.

File Maintenance

Investigative Consumer Reports (screening reports) should never be maintained in the employee’s jacket, but should instead be kept under lock and key with limited access by authorized management personnel in separate file facility and in alphabetical order. The files should be maintained for the seven-year statutory period commensurate with employee file retention.

Background information forms contain confidential subject data, including date of birth and other information, and should not be maintained by the human resources department. The vendor should do this as part of their service, and in the event the form is required for court purposes, should provide it upon request for up to seven years.

Interpretation

Parameters on how to interpret information should be established at the outset of the program, and should be undertaken by the same personnel to ensure consistent application of theorems of qualifiers for continued candidacy or hiring. This area is open for discussion and, of course, varies with each environment.

As you can undoubtedly imagine, in order to properly implement any factual screening program one needs to start with forms which allow the candidate to provide thorough information such as name, address and so forth. These forms should be the starting point for any intelligent screening program. Just about everyone has an employment application, or some form of release/disclaimer used in the initial application process.

Many screening firms are turning to some form of independent release form for their clients, after long conducting checks without them. The forms vary in substance and content, and you would be well advised to learn as much as possible about the philosophy of the form before using it in order to avoid trouble from an unsophisticated form. The information requested should include the following:

Full Name
Current and prior addresses
Ancillary name forms
Social Security number
Date of birth (Yes, this absolutely legal if it is being used for criminal file identification purposes, and the applicant is made aware of this sole use. You must also not keep a copy of this form anywhere in the employee’s file in case the EEOC auditor doesn’t see things quite the way you do.)
Driver’s license number
Criminal history disclosure section (This varies from state to state, and must be constructed in accordance with guidelines and standards for the disclosure, acquisition and release of criminal information under applicable state law.) Agreement and consent to obtain consumer information (Some of the more sophisticated forms now in use have some effective, built-in disclosure inducement items which are the result of investments in psychological research and testing. These are designed to get more than just a regurgitation of subject identifiers.) We have purposely not provided a sample form with this article due to the proprietary nature of the good ones in existence. Also, since each business environment is different, it is possible that a “generic” form might be used improperly.

Conclusion

At this point, you should have a basic familiarity and comfort level with the world of factual employment screening and its ramifications. The key things to remember are as follows.

Establish an intelligent and consistent policy of factual employment screening, drug testing, and/or personality evaluation.

.Perform a thorough job of screening your employment candidates.Rely only upon tried and true methods of employment screening, as trendy or new wave methods, which are untested, can land you in court very quickly.

.Use common sense and rely on your intuition. Good, solid factual employment screening is not the ultimate decision maker – you are. The final report should only serve to reinforce your evaluation of the candidate, nothing more.

.Run your screening program with compliance in mind at all times. If you don’t, it is certain that labor attorneys, EEOC auditors, and others will confront you.
In a nutshell, employment screening is like any other sensible management policy. If you are careful, smart, thoroughly qualify your vendors, and implement a viable common sense program, you will not only get better people in the organization, but also have less opportunity to exercise your workplace violence contingency plans or initiate fraud examinations.

About the Author

Thomas C. Lawson, CFE, CII is President and Founder of APSCREEN International, the world’s leading full service Consumer Reporting Agency since 1980. Lawson is called “one of the real pros” as he has helped to reshape laws including those for employment screening, permissible credit reporting, asset discovery and fraud examination. Tom is a Life Member of: ACFE, ASIS, SHRM, PIHRA, PNRRA, PRRN, CII, WAD, WIN, FCAOC and OCEMA.