Handling a negative result found during a background check can be a sensitive and challenging task for employers. It’s important to approach this situation carefully and in compliance with legal requirements. Here are a few things to keep in mind as you respond to a disappointing result found during a background check:
First, it’s important to verify the information. Before taking any action, it’s essential to verify the report and confirm that the negative result is accurate. You are required by law to give the candidate a copy of any negative report. Hold off from taking any action — including taking the applicant out of consideration for a new job — until they have had a chance to respond. You should allow them at least a few business days. You may need to speak with your background check provider or the relevant authorities to confirm the information, and to understand the context and circumstances surrounding the discrepancy or negative result. Errors in court records can and do happen! Identity confusion is common as well — most criminal records are indexed only by name and date of birth, with the social security number used to confirm the person’s full name and location at that time. For very common names, the possibility of errors becomes greater.
Second, it’s important to comply with legal requirements. There are many laws and regulations regarding background checks, and it’s particularly important to follow them in this situation. For example, the Fair Credit Reporting Act (FCRA) requires employers to provide the candidate or employee with a copy of the background check report and a notice of their rights before taking any adverse action based on the report. If the criminal report was created by a background check company, you must give them the company’s name and phone number. Your state or local municipality may have additional rules. Sadly, we live in a litigious society; a job candidate who feels their rights have been abridged can easily find a free lawyer to file a lawsuit. Following the rules and treating people with respect is a smart thing to do.
It’s worth mentioning here that only a background report from a consumer reporting agency such as SentryLink is legal to use for employment purposes. If you picked some random site off the internet — don’t use that report!
A reputable background check provider can help you work through these issues. At SentryLink we will reinvestigate any disputed criminal records free of charge, and communicate with you and the employee regarding the results. We also provide resources with the necessary legal documents and information to get you started on your background check program. Hire with confidence.
Conducting an effective background check for a remote or virtual employee can be a bit more challenging than for an in-person hire. It is important to take into account the unique challenges that arise when hiring someone who will be working remotely. Here are a few things to keep in mind when conducting background checks for remote employees:
First, it’s important to verify their identity. With remote work, it can be more difficult to confirm that the person you are hiring is who they say they are. You can use online verification tools, such as video conferencing, to confirm the employee’s identity. Their appearance should be compared with a copy of their driver’s license or other photo id. A social security number validation can help confirm that the applicant is providing valid information. Additionally, it’s important to make sure that the employee’s contact information is accurate, so that you can reach them if needed.
As with any employment background check, the candidate must agree in writing to allow the background check. You must also provide them with certain required federal and state notices. We provide a sample background check authorization form which you can customize for your company needs. For a remote employee you can get this signature by fax, scan, PDF e-signature, DocuSign, or even from photos snapped on a cell phone. If you do use the cell phone method, be sure to have the employee initial each page of the authorization form and send photos of each page to prove that you gave them everything that is legally required.
Another important consideration is the geographic scope of the background check. Remote employees may have lived in different locations, and therefore may have a criminal history check from different states. It’s important to conduct a background check that covers all of the places where the employee has lived, worked or gone to school in the past. Our national criminal background check is an effective and economical way to meet this requirement.
Finally, it’s important to communicate with the employee throughout the process. It’s important to keep them informed of the status of their background check, and to address any concerns or questions they may have. This will help to build trust and a positive working relationship with the employee.
Overall, conducting an effective background check for a remote or virtual employee requires a bit more effort and attention to detail than for an in-person hire. However, by taking the time to verify the employee’s identity and background check, you help ensure that you are hiring a trustworthy remote employee.
Over the past twenty years, background checks have become increasingly powerful. The core of a good background check is information, and information everywhere has become easier to access with the rise of databases. This has been very disruptive to social policy, and governments have responded with new laws. An increasing emphasis on fairness, racial equity, and full economic access means that these rules are continuing to develop over time. Failure to understand them can be an expensive mistake.
Criminal records are created in local courthouses. An old, traditional search would go through the following steps:
Figure out where the subject has lived, by using their social security number.
Go to any courthouse where they had lived within the past 7 years, and look for any criminal records. Going to courthouses takes time and money, so limiting the scope of the search to 7 years kept costs down. (In some cases the client could get a 10 year search for an extra fee.)
There were limits to this type of search. It might miss crimes committed out of town. Most importantly, it meant that crimes over 7 years old tended to be forgotten. While the Fair Credit Reporting Act (FCRA) generally allows convictions to be reported indefinitely, it was cost prohibitive to search too far back for most candidates.
Background checks changed once some enterprising companies began buying court records in bulk and entering them into searchable databases. Suddenly it was very easy to find records of crimes committed 20 years ago. Minor offenses could become a permanent bar to employment. In a competitive market, people found that a mistake made decades ago prevented them from ever getting a job or renting an apartment. And legislators started to notice.
The fundamental idea behind “ban the box” is banning the checkbox on employment applications where the candidate is asked, “Have you ever been convicted of a crime?” It is just too easy to filter out applications that check the box. Laws addressing this require employers or landlords to wait until the first interview, or in some cases until a conditional job offer was made, before asking about or looking into criminal history. Ban the box laws have developed piecemeal over the United States, and they are not consistent. There are many places where rules exist at the local and state levels — and the local ones are often the most restrictive.
Some jurisdictions have taken this philosophy further, seeking to avoid any discrimination against individuals with a criminal history. A notable example would be New York City’s Correction Law, Article 23A, “Licensure and employment of persons previously convicted or one or more criminal offenses”. An employer may not discriminate against a candidate unless:
There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
NYC does not permit background checks until a provisional job offer has been extended. A candidate with a criminal conviction who is denied a job may request a written explanation from the employer, who has 30 days to respond. Employers who violate this rule may be criminally liable with imprisonment of up to one year, and/or a fine of up to $500. Add in liability for lost wages up to $125,00, and a civil penalty of up to $250,000 for willful violations, and it is easy to see why employers are extremely wary.
Illinois may be poised to follow, with Senate Bill 1480. This bill would define use of conviction records in an employment-related decision as a civil rights violation, unless
there is a “substantial relationship” between the criminal offense and the position, or
it would involve an “unreasonable risk” to property or the safety of a specific individual or the general public
As with New York City, employers are guided to weigh various factors such as the length of time since the conviction and the circumstances surrounding it.
It has always been sound policy to look at the circumstances of someone’s criminal record before rejecting them on that basis. The Equal Employment Opportunity Commission (EEOC) has made this clear for many years. The compliance rules will continue to evolve. As an employer, you should always start with a comprehensive background check authorization form that includes the necessary documents for your state. And when in doubt, consult with legal counsel.
We are not lawyers and this post does not constitute legal advice. We are happy to answer general questions about our background check service.
According to the lawsuit, Amazon initially offered Theo Feldstein a job. They then ran a background check on him through Accurate Background Inc. In this case, accurate was a misnomer — there were criminal convictions incorrectly listed on the report. Amazon withdrew the job offer, without giving him a chance to get things corrected, or providing him with a copy of the report as required by the Fair Credit Reporting Act. Feldstein claims he “happened to find out” that a background check had been received on him by Amazon. (It’s been a bad year for Amazon: a similar lawsuit was filed in April 2015.)
This is not the way things are supposed to happen. Job applicants have the right to know that they have been investigated, and that negative information may have been provided. The sad fact is, public records are imperfect. With thousands of county courts across the country, many of them not automated, errors can and do occur. Even worse are problems of identity confusion; as social security numbers are increasingly removed from case records, the risk of finding someone else with the same full name, date of birth, and even residence history increases.
The other night, a friend told me about a debate in his homeowners’ association. Some members wanted the association to require contractors to certify that they conduct criminal background checks on all new hires. Others think that’s extreme.
August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender hired to do service work in her home. Sue had contracted with a major department store to have the air ducts in her home cleaned. Burdine’s did not conduct criminal background checks on those workers they sent into their clients’ homes. Sue’s life is over. Had a criminal background check been done, Sue might still be alive today. The Sue Weaver C.A.U.S.E. was created to promote Consumer Awareness of Unsafe Service Employment.
The organization makes two very good points on the site. First, criminals often use their employment to find their next victim. And, second, “bonded and insured” doesn’t mean that a background check has been done.
That’s a good case. Make sure companies you do business with and who will send people into your home are looking out for your safety.
And, if your business does a criminal background check on everyone you hire, it’s something you should be telling your customers about. After all, you’re helping look out for their safety.
By making sure that a national criminal background check is part of the process for everyone you hire, you’re doing something to keep your employee and your customers safe. So tell people about it. It can also be a way to set yourself apart from your competition.
The Federal Drive, a show on Federal News Radio recently offered the following advice to job seekers: Background check in your future? Don’t lie! One of the things that I got out of the material is the difference between the federal government and other employers.
The show included comments from Debra Roth. She’s a partner in the firm of Shaw, Bransford and Roth, that specializes in Federal employment law. Here’s just one comment. “Lying to the federal government almost always, in current times, will get you criminal charges.”
That’s probably not true for your company. The biggest stick you’ve got is that lying on an application is cause for termination. But there is something that the feds do can make your hiring and background check process more effective.
The government uses questionnaires to gather information. That’s a good process for two reasons.
First, it assures that you ask the same questions in the same way every time. And the answers will be in the applicants own handwriting, so there’s no chance of “misquoting” as can happen when you ask the questions in an interview and write down the response.
Here’s another idea you can use. The feds use two different questionnaires.
Obviously, you don’t have any “national security positions” at your organization. But you do have positions with access to money or to confidential records.
Creating separate forms and process for sensitive (access to money or to confidential records) and non-sensitive positions allows you to ask different questions and run different checks based on the position. That should make your process more effective and consistent, which is a good thing in today’s lawsuit-happy world.