BRB's Public Records Blog

Why Safe Hiring is Such a Challenge

Every employer assumes a large invisible burden when hiring workers. That burden is the obligation—the duty—to exercise reasonable care for the safety of others. The legal description of the duty of care is called due diligence. The employer’s duty to exercise due diligence means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job. The duty also extends to supervision, training, and retention once hired. Sadly, there are many employers who either do nothing or very little about due diligence during the hiring process.

Employers of all sizes know that just one bad hire can create a legal and financial nightmare. Employers need to take reasonable efforts to avoid allowing a bad hire—someone who is too unfit, dishonest, unqualified, disruptive, or dangerous for the job—from even entering the workforce in the first place. If a bad hire manages to get through the front door in the first place, employers can be held liable for negligent supervision or negligent retention.

Although everyone agrees that safe hiring and due diligence are missions critical for any business, there are numerous challenges facing employers who wish to establish safe hiring practices in their workplace. Here is a quick look at some of the issues facing employers:

1. There Are No Magical Tools That Find an Honest Person

In the wake of the financial meltdown and home mortgage crisis, and what appears to many to be a general deterioration of corporate ethics and morality, more emphasis is now placed on the age-old question asked by Greek philosopher Diogenes: How do you find an honest person?

Part of the challenge in safe hiring is that by definition, employers are seeking an elusive quality. Ultimately, the ability to find an honest person depends on the correct use of a number of overlapping tools. These include: 1) a number of objective fact-finding tools such as pre-employment screening and reference checks, 2) tools used to convince applicants to be self-revealing (applications and interviews), 3) a variety of assessment tools that are now available to employers, and 4) to a subjective extent, instinct and intuition. However, reliance only on instinct and intuition can be dangerous. Consider this fact—every dishonest person ever hired was sized up by someone and deemed a good fit for the job.

2. It is Almost Impossible to Spot Deception at Interviews

Even if Diogenes had found an honest person, there is a body of modern evidence that suggests it is difficult for anyone, from ancient philosophers to modern day employers, to use an interview to determine who is really who. Employers have a distinct challenge when it comes to spotting those attempting to deceive. Industry statistics suggest that as many as 40% of all job applicants falsify information about their credentials. There is also scientific evident to suggest that even if the honest person appeared for an interview, it might be difficult, if not nearly impossible, for an average employer or Human Resources professional to even detect who is honest or dishonest. There is now a body of scientific evidence to suggest the human beings are not nearly as good as they think they are in determining who is honest or dishonest, so trying to spot the dishonest applicants at interviews is difficult if not impossible.

3. Compliance with Hiring Laws

Certainly, all citizens have a reasonable expectation of privacy and a right to be treated fairly; yet, at the same time, an employer has the right to make diligent and reasonable job-related inquiries into a person’s background so that the company, its employees, and the public are not placed at risk. Employers need to know if there are facts about an applicant that are either job related or run contrary to a “business necessity,” such as creating an unacceptable risk factor. Laws associated with hiring and the employment screening processes have sought to achieve a balance between privacy and fairness on the one hand, and due diligence and business necessity on the other. Since laws can and do vary from one state to another, multi-state employers are faced with a difficult task of staying up-to-date with all the legal obstacles to keep the hiring process within specified legal boundaries.

4. There is No Instant Database That Gives All the Answers

Unfortunately, there is no magic database in existence for employers to use. There is no national credentials database where an employer can instantly confirm an applicant’s past employment or education. There is no public record database where an employer can instantly find out if the applicant has a criminal record, a problematic driving record, or a job-related civil lawsuit. It would be helpful if there was a magic website called www.ShouldIHireThisPersonOrNot.com, where an employer received an instant answer, but that just does not exist and is unlikely to do so in the foreseeable future.

Some employers have been given the legal authority to obtain government criminal records when filling positions involving security or access to groups at risk. In many states, for positions involving access to vulnerable patients or children, screeners for hospitals and school districts can submit applicants’ fingerprints to be checked by the FBI or state authorities. However, as discussed in later chapters, even that database does not have all the answers for employers.

5. The Effects of Corporate Culture and Other Impediments

At some firms, efforts at safe hiring may be impeded by the simple fact that it has not been done historically. Some employers are still reluctant to engage in background screening out of a concern that an applicant may find it insulting.

There is, even more, reluctance to perform screening for higher-level positions, especially positions with a “C” in the title, such as CEO or CFO. The higher a person is in the organization, the more harm that person can potentially do to that organization. Internationally, the idea of background checks is just not part of the cultural norm in many countries.

 

This information was taken from The Safe Hiring Manual 3rd Edition by Lester S. Rosen. For more information on this publication, please visit the BRB Bookstore.

An Example of Compliance with Certain Discrimination Laws When Doing a Background Check for Hiring

Per compliance with Title VII of the Civil Rights Act and with ADA, employers want to avoid application questions and interview questions that directly identify a person as a member of a protected group. Even questions that appear neutral on their face can be illegal if the question results in a disproportionate screening of members of a protected group or is not a valid predictor of job performance.

The excerpt below taken from Les Rosen's new book The Safe Hiring Manual 3rd Edition  is a discussion of how employers and screening companies can avoid discrimination lawsuits when dealing with someone who has changed their name such as through marital status. We thank Mr. Rosen for allowing us to reproduce this text below. 

 

How to Avoid Previous Names and Marital Status Discrimination

One of the areas where the discrimination laws have an effect on safe hiring is the use of previous names in a criminal search. The issue arises because past names are a necessary identifying piece of information. For example, when searching for criminal records, researchers base the search on the last name. However, if an applicant at one time was known by a different name, a complete criminal search must be conducted under BOTH names. The most typical situation is in the case of a woman who has married and changed her name.

The problem is that by referring to a name as a maiden name, an applicant potentially is being identified on the basis of their marital status or sex, which can be a violation of federal and state discrimination laws. In California, for example, asking for an applicant's maiden name has been specifically labeled as an unacceptable question by the California Department of Fair Employment and Housing, the California agency charged with enforcing the California civil rights laws. Consequently, a previous name search should not be referred to as a "maiden name" search, since that clearly indicates that an employer is obtaining information on marital status, which is a prohibited basis upon which to make an employment decision. That is why any application or consent for background screening should always include the phrase "previous name" instead of "maiden name."

Is this an example of a distinction without a difference or political correctness going too far? No. Marital status has been a traditional basis for a woman to be the subject of discrimination. The fact is that whether a man or woman is married is simply not a valid basis to predict job performance. However, the reality has been that a woman applicant who is married may be the subject of discrimination based on a belief that she may leave the job to have a family. By phrasing it as a "previous name," the same information is obtained for purposes of a background check, but the application information is facially neutral. In addition, a female applicant is not discouraged from applying based on an apprehension that by asking for a "maiden name" there is a likelihood of discrimination.

 

See www.brbpublications.com/books/detail/545.aspx?Id=545 for more information about this new 840-page release. All orders placed before February 28 receive a sample Request for Proposal (RFP) for choosing a background screening service. A Word document will be emailed.      

Four Private Sector Resources for Tracking Candidate Contributions, PACs, and Lobbyists

With election time looming, there is increased interest in who is supporting who - including donations, PAC money, and data about lobbyists. The text about these recommended private resources is taken from the upcoming 4th edition of The Manual to Online Public Records.

OpenSecrets.org is an extremely useful site. Per their web page "...is the nation's premier research group tracking money in U.S. politics and its effect on elections and public policy. Nonpartisan, independent and nonprofit, the organization aims to create a more educated voter, an involved citizenry and a more transparent and responsive government."

Another recommended site is FollowTheMoney.org which is maintained by the National Institute on Money in State Politics. The Institute provides a searchable database with substantive profiles on candidates and issues, insightful reports and reliable data for all 50 states. This excellent web page also has many, many other database searches available on a subscription basis only.

Also, a great searchable directory of lobbying firms is found at LobbyData.com. Search by name, the agency involved or by issue.

The VoteSmart site tracks many facts about candidates including campaign contributions; however, data may be lacking for local politicians. The site includes voting records and evaluations by special interest groups.

Free Copies of 2011 PRRN Membership Directory for Special Distribution

While supplies last, BRB Publications is providing copies of the 2011 PRRN Membership Directory free of charge to interested organizations for distribution at meetings or conventions. Public Record Retriever Network (PRRN) is the organization that set the first Industry Standards for the retrieval of public record documents and whose members abide by a Code of Professional Conduct.
 
The Membership Directory is 240 pages and organized in two sections. The first shows retrievers by state and county, indicating on-site researchers who visit courthouses and recorder's offices. The second section provides a full profile of each member.
 
This offer is only for mass distribution by organizations. If you are interested, please reach Mike Sankey at 800-929-3811 or [email protected].