The Three Due Diligence Myths of Background Screening

The biggest myth in background checking is that there is some grand online database to check and then you’ve done your due diligence. Not so, says attorney Lester Rosen.

Rosen, who is CEO of Employment Screening Resources in Novato, California, made his remarks at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC. Here are three of his myths:

Background Checks Myth 1. There is a national database available to private employers for checking criminal records or false credentials, such as education or employment.

Contrary to popular belief, there is no such national database, despite some advertisers claims to the contrary, says Rosen.

Furthermore, he says, FBI fingerprint checks are only available when mandated by law (e.g. for teachers and child care workers).

Unfortunately, he adds, the primary method for obtaining criminal records is to physically look at each relevant courthouse! And there are about 10,000 courthouses in America with court records in over 3,200 jurisdictions.

Beware of using commercial databases as a primary tool for records checks, Rosen cautions. There are substantial issues with accuracy, completeness, and timeliness, and false positives and false negatives are possible. They can be useful as a back-up or secondary tool. In some states, use is very limited (e.g., CA, NY & TX).

If you do get “hits” with such a system, the hit should be re-verified at the courthouse for accuracy and current status, he adds.

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Background Checks Myth 2. Due diligence means perfection.

Unless set by a statute for your industry, Rosen says, due diligence is a moving target that is determined by a jury based evidence in the trial concerning injury, foreseeable risk, duty of care, and causation.

Nevertheless, to pass due diligence scrutiny, you just need to show that you did the best that you could be expected to do, not that you did a perfect investigation, Rosen says.

Naturally, he adds, high risk employers, such as firms that send workers into homes, will have a higher duty of care. Workers in uniform have the “color of authority,” Rosen says.

If you haven’t done due diligence, Rosen says, typical defenses won’t help you. For example, don’t try to claim that:

  • A background check would not have revealed any red flags or lack of causation
  • Conducting a check would have been too costly
  • The applicant lied
  • Others firms in our industry do not conduct background checks

Background Checks Myth 3. You can automatically disqualify an applicant based on a criminal conviction without a business justification.

You may not automatically deny employment based on a criminal conviction, says Rosen. The EEOC requires that you take into account the nature and gravity of the offense, nature of the job, and time elapsed.

However, if the person lied on the application, then the falsehood can be the grounds to deny employment.

Who needs background checks? What jobs? Only one place to find out—your job descriptions … as long as they are up to date. How are yours? Detailed enough to help? Essential skills delineated?

If not—or if you’ve never even written job descriptions—you’re not alone. Thousands of companies fall short in this area.

It’s easy to understand why. Job descriptions are not simple to do—what with updating and management and legal review, especially given the ADA requirement of a split-off of essential functions from other functions in the description. Wouldn’t it be great if your job descriptions were available and already written?

Actually, they are. We have more than 700, ready to go, covering every common position in any organization, from receptionist right up to president. They are in an extremely popular BLR program called the Job Descriptions Encyclopedia.

First created in the 1980s, the “JDE” has been continually refined and updated over time, with descriptions revised or added each time the law, technology—or the way we do business—changes.

Prewritten job descriptions in the Job Descriptions Encyclopedia now come with pay grades already attached. Click here to try the program at no cost and receive a limited time bonus.

Revised for the ADA, Pay Grades Updated

There was a major revision, for example, following the passage of the ADA. In fact, BLR editors reviewed every one of those 700 descriptions to ensure they were ADA-compliant.

Another enhancement was the updating of pay grades for each job. According to our customers, this is an enormous time-saver, enabling them to make compensation decisions even as they define the position. You can see a sample job description from the program by clicking here. (Yes, it is the one for HR Manager—Pay grade: 37.)

The BLR Job Descriptions Encyclopedia also includes an extensive tutorial on setting up a complete job descriptions program, and how to encourage participation from all parts of the organization. That includes top management, the employees, and any union or other collective bargaining entity.

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