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Background Investigations
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We conduct background investigations on all new hires. We check credit, criminal and DMV. We hire field operations personnel that supervise construction projects. Our practice is to conduct a backgrou
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Forums » Topic Forums » Legal Forum » Background Investigations
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Background Investigations
posted at 1/17/2010 12:33 AM EST
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Posts: 3
First: 1/17/2010 Last: 1/28/2010 |
We conduct background investigations on all new hires. We check credit, criminal and DMV. We hire field operations personnel that supervise construction projects. Our practice is to conduct a background investigation after extending a verbal offer, the offer being contingent on a satisfactory background investigation and references. We have recently rescinded to offers of employment as a result of DMV reports. Example: one had a vehicular homicide 20 years ago plus 2 DUI/DWI, the last one being more than 10 years, in addition to numerous speeding and other traffic violations; the second one had 3 DUI/DWI the last one being 10 years ago, plus numerous speeding and other traffic violations plus a restriction on his license classified as "zero tolerance". Both candidates felt compelled to send the president of the company an email with some false representations of what was said to them as well as appealing their case. Our position still stands, given the nature of the roles they will hold within the organization. As a result of this, we have since decided to cease extending verbal offers and have candidates complete their Consent and Disclosure form during their initial interview. The employment application also indicates that we conduct a background investigation, etc, etc. and they are required to sign as acknowledgement. I have been researching this area, and I would like some pointed clarification: Is there any standard as to how far back to consider DMV information in the decision to extend an offer of employment or is it a matter of the company being at liberty to establish its own standard (ie., anything greater than 5 years will not have an adverse impact on the decision). In these two instances (as in all instances) we consider everything: experience, credit, criminal, DMV, and references. In the two instances above, in addition to the DMV issue, they both had credit issues (which are explained by the fact that neither has worked in many months due to the economy and the industry we are in). We are a small company and we have no legal counsel on staff. Some advice would be appreciated as well as any reliable resources for future similar instances. |
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Background Investigations
posted at 1/17/2010 6:12 AM EST
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
I think the best way to avoid these situations is to make your offers in writing AND contingent upon successfully completing background checks. You'll avoid a lot of heartache by doing it that way.
As for what you should consider and how long ago, I suggest that you contact one of the larger background check firms or an employment law attorney for expert guidance. Most companies only check for the past 7 years except for positions involving security clearances or are otherwise extremely sensitive (eg, involve handling lots of money). In your case, DUI's 10 years ago may not reflect the person today and especially if there have been none since. |
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Background Investigations
posted at 1/18/2010 4:59 AM EST
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Agree with Nork. And you have to be careful on the credit check side. If they have filed for bankruptcy, they are covered under the Bankruptcy Act that prohibits employment discrimination based on the fact that they filed. It's hidden in the BA, but it is there. |
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Background Investigations
posted at 1/18/2010 5:34 AM EST
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Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
The issue is what seems to be reasonable in light of the position's duties. For safety-sensitive positions (as yours seems to be), I certainly wouldn't use a ceiling of 7 years. It is also helpful to ask yourself, if somebody is harmed because of the employee's actions that can logically be linked to his/her driving record, how comfortable will you be in justifying hiring the person in light of their documented driving history-----the harmed person will in all likelihood claim negligent hiring? As an aside, an MVR is considered a consumer report when procured by a third party consumer reporting agency and hence the employer must ensure FCRA compliance when procuring and using such information. I trust this information is helpful. Dave Arnold, Ph.D., J.D. |
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Background Investigations
posted at 1/26/2010 5:06 AM EST
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Posts: 26
First: 6/10/2004 Last: 1/26/2010 |
I believe you may add the criteria you want as long as it is administered as policy and not applied arbitrarily and is needed for the position.
We use a table of disqualifications listing the type of violation and the time period since the offense. For example, DUI's are disqualifying for any offense in the past five years. Vehicular homicide has no expiration period - any conviction automatically disqualifies the applicant. Minor offenses such as speeding no more than three in the past three years. Also, you should consider the driving record as a suitability issue. If you have two applicants and one has a checkered driving record, yet is "accepatable" as per your qualification standards for driving, who then is the best qualified candidate? Good luck. |
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Background Investigations
posted at 1/26/2010 5:08 AM EST
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Posts: 3
First: 1/26/2010 Last: 10/26/2010 |
Not a direct response, but....I think you're on the right track with not extending offers until everything is done.
I think a "best practive" is to have the internal recruiter be discussing salary (and any other outstanding issues) with the candidate late in the process, while background checks, references, etc. are being performed. If the recruiter is doing their job right, the formal offer is then extended after all i's dotted/t's crossed - and should expect an acceptance from the candidate after a short consideration time - say 24 hours or a weekend. This process works suberbly - and HR is adding value - if they detect an issue with comp, relo, etc. during the "discussion" phase, an offer may never be extended. |
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Background Investigations
posted at 1/28/2010 1:07 AM EST
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Posts: 3
First: 1/17/2010 Last: 1/28/2010 |
With respect to the DUI and vehicular homicide items, etc.....if the decision is made taking everything else into consideration, to rescind an offer that has already been verbally extended, what do you recommend be said to the candidate. After all, according to the FCRA and the Consent & Disclosure Form that they sign prior to performing any background investigations, they have a right to request a copy of their background investigation. When rescinding an offer because the DMV has 4 DUI violations over the course of the past 15 years and a Zero Tolerance restriction on the license in effect through 2012 (which means that any violation in any state would subject the license to immediate removal) in addition to a violation that the individual was caught driving after the license was removed after one of the DUI violations, what do you tell the candidate? Is it appropriate to identify specifics given that the role he will be in will be a role that is a public safety matter as well as subject to machinery and equipment and requires the individual to be driving? |
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Background Investigations
posted at 1/28/2010 2:56 AM EST
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Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
Under the FCRA the employer needs to provide the applicant with a pre-adverse action notice if it intends to use information in the consumer report (in whole or in part) as the basis of an adverse employment action. Such notice must contain a copy of the consumer report. Additionally, after taking the adverse action the employer must provide a post adverse action notice, including notice that the applicant may receive a another copy of the report by contacting the consumer reporting agency. While the FCRA has a number of notice requirements, nothing therein requires that the employer attempt to explain or justify their employment decision. Just as I would not feel compelled to explain why a candidate did not pass an interview, job simulation, assessment, etc., there is no compelling reason to explain the linkage between the contents of the consumer report and the adverse action. Employers that attempt to specifically explain their decisions to applicants commonly find that it a significant undertaking and substantially prolongs the dialogue with unqualified applicants. I trust this is helpful. Dave Arnold, Ph.D., J.D. |
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