Background checks help ensure new employees are who they say they areConducting a background check on a prospective employee (or volunteer, in some cases) might seem impersonal and unpleasant. However, it's an everyday fact of the recruitment and hiring process. This is especially true for nonprofits, who tend to be held to a high standard of accountability given their service to the public — and in particular to vulnerable populations.
What's included in a background check?
The term "background check" can be somewhat misleading. It's not one particular thing, but rather a series of checks and reports that originate from different sources — and may be conducted only with the prospective employee's consent. Privacy laws come into play, too, typically limiting background checks to reports on criminal history, credit and past employment and education.
Criminal background check
Criminal background checks of prospective employees can take many forms, including searches of:
- State incarceration databases
- Federal government agencies, such as the FBI and Department of Justice
- Sex offender registries
These searches are either fingerprint- or name-based. Name-based searches typically attach additional identifying information, such as Social Security number and date of birth. Fingerprint searches can sometimes be more costly.
Some cities and states have begun to adopt "ban the box" legislation, making it illegal to ask about a prospective employee's criminal history. In most states, this legislation hasn't been extended to private employers, but that may change. Many states are, however, constraining the questions about criminal history that prospective employers can ask or the number of years that can be searched — limiting questions to, for example, felony convictions.
Employment credit report
An employment credit report accesses a prospective employee's credit history without revealing specific financial details, such as credit score or bank information. The goal of an employment credit report is to identify any information that would make someone an untrustworthy employee — not to reveal details of an applicant's credit history.
In the wake of unprecedented scrutiny from the public, however, many city and state governments are questioning credit checks for prospective employees — with a few states specifically limiting the use of credit information in employment decisions.
Employment verification confirms the work history provided by an applicant, such as employment dates, position, salary and reason for termination (often with a consent form signed by the prospective employee authorizing the former employer to release that information). Asking for more information than this may be in violation of the Fair Credit Reporting Act, which promotes the accuracy, fairness and privacy of information in the files of consumer reporting agencies.
Education history is one of the more significant searches. For many positions, education isn't simply a prerequisite but also vital to the prospective employee's incumbent skill set and legitimacy. Verifying education can be a simple and straightforward process. However, various glitches — including school-specific policies on obtaining education history, school closures during holidays or between terms, name variations, and incorrect or missing student numbers — may slow the process.
What are some ways to develop an appropriate screening program?
A one-size-fits-all approach to employee background checks is probably a mistake. Screening procedures should depend on the nature of your business as well as the specific position and responsibilities. At the same time, employee screening should be systematic and consistent.
- Extent of screening. The extent of background screening may vary depending on the nature of your business and the specific position, team or department. Assess the potential risks for each position to determine what's warranted.
- Legal compliance. The method of screening must retrieve accurate information without infringing on the prospective employee's privacy.
- Thresholds for unsuitability. Establish clear and consistent thresholds or benchmarks to identify when a prospective employee is unsuitable for a particular position.
- Timing. Having a clean background check on file for a new hire may be sufficient in the short term, but many employers conduct subsequent background screening at regular intervals for certain job categories or employment situations.
Who conducts background checks?
You may choose to pursue background checks internally, hire a background screening company or look to an online software solution.
If you hire an outside company to perform background checks, it should be their responsibility to be aware of any laws regarding background checks — including state-specific regulations and international laws on employment credit reports and privacy laws. Additionally, background screening companies are obligated to protect the identities of the people they screen and to maintain records of past screenings.
What about informal background checks?
In addition to a formal background check conducted by your HR department or a background screening company, you may be tempted to check a prospective employee's online profile and presence. While this might seem only natural, it's important to tread carefully. These informal searches may be interpreted as discrimination or a violation of privacy. In fact, the potential for misuse of informal searches might make a case for relying on a background screening company.
What if a background check raises concerns?
Although you're allowed to hire whoever you choose, you're prohibited from discrimination. In some cases, recruitment notices that specifically prohibit applications from people with a criminal history may qualify as employment discrimination — serving as grounds for a complaint or even sanctions from the U.S. Equal Employment Opportunity Commission.
If you choose not to hire an applicant based on something discovered in a background check, you must notify the applicant verbally or in writing. You must also provide contact information for the reporting agency and give the applicant the opportunity to dispute or correct any false or mistaken information in the background check.
Finally, be sure to place any concerns raised by a background check in context.
In the words of Ann Shaklin, director of loss control at the Nonprofits Insurance Alliance Group: "A criminal record is not in itself a reason not to hire someone. For some people, what they learned through their experiences with the criminal justice system may be an important way in which they are qualified for the job. For many, a minor offense a long time ago should not make them unemployable for life. The information you obtain through a background check should inform your decision, not make it for you."
This article draws on the expertise of Grace Davies, a Minneapolis-based attorney with special interest in product liability, medical malpractice and employment discrimination.