The Ultimate Guide to Background Checks

Every employer assumes a large burden when hiring workers. This burden is the obligation – the “duty of care” – to exercise “due diligence” and consider if a potential new employee represents a risk to others in view of the nature of the job. Sadly, some employers do very little regarding due diligence during the hiring process.

Employers of all sizes should realize that just one “bad hire” can create a legal and financial nightmare. All employers need to take reasonable steps to avoid allowing a bad hire – a worker who is too dishonest, unqualified, unfit, or even dangerous for the job – from ever entering the workforce in the first place.

Employers can be sued for “negligent hiring” if they hire workers that they either knew – or should have known in the exercise of reasonable care – were dangerous, unfit, or not qualified for the position and those workers end up causing harm to their co-workers or to members of the general public.

The best way for employers to exercise due diligence is with background checks of job applicants that minimize the probability of hiring unqualified and unfit candidates while at the same time helping to identify those candidates who are qualified and best suited for the job. Here are some of the usual components of background checks.

Criminal Records Searches

A criminal records search is a critical element of background checks. Depending on the job in question, an applicant’s criminal history may be a disqualifying factor if it involves violence, sexual abuse, child abuse, and drug offenses. Also, there are rules concerning the fair and legal use of criminal records.

A screening firm can perform criminal record searches at the county, state, and national levels. “County” criminal records searches are searches for records kept at county courts in the United States. A search of counties where the subject lived, worked, and attended school in the past seven years is preferred.

“Statewide” and “national” criminal records searches can be suitable as supplements to – but never as replacements for – county searches mainly due to some records being incomplete or not fully updated. They cover a larger geographical area than county searches and are an additional layer of due diligence.

In addition, employers should be aware of the U.S. Equal Employment Opportunity Commission (EEOC) guidance on the use of criminal records as well as “Ban the Box” and Fair Chance Hiring laws. Employers should check with their attorneys to ensure they are in compliance with applicable state and federal law.

Education Verifications

Certain applicants may need to have a proper degree from a college or university to perform a certain job. Education verifications allow employers to verify that job applicants have the proper certifications or degrees and that they attended accredited schools and not phony businesses offering fake degrees.

Professional License/Credential Verifications

Employers may need to perform professional license/credential verifications for certain job applicants. These verifications will find out the license that is held, the current status, and the expiration date with the licensing board in question. Additional certifications, restrictions, or reprimands may also be reported.

Employment Verifications

A background check of a job applicant may include an employment verification to verify any past jobs listed on a resume. Employment verifications may reveal if an applicant lied on a resume or was fired from a past job for misconduct. Some states and cities prohibit questions about the salary history of applicants.

Personal & Professional Reference Checks

Employers may be surprised by what they can learn through “personal” and “professional” reference checks of job applicants. This is because some job positions rise above the need for a basic employment verification and require a deeper look into the applicant’s character, performance, dependability, and trust.

Sex Offender Registry Searches

Sex offender registry searches can help determine if a job applicant is a registered sex offender. This search is particularly critical to organizations that serve vulnerable populations such as children. This search is recommended for positions with unsupervised access to – or control of – vulnerable persons.

Social Media Screening

Some employers use social media to screen job candidates, although there can be legal land mines with privacy issues. However, if a worker is hired, commits a harmful act, and is later found to have posted inappropriate words and images on social media, employers may be asked why they did not know.

Driver Record Searches

While many jobs do not require a check of driving history, a driver records search is a central part of the background check process for any job that involves driving. This search verifies if an applicant has the necessary license to drive and may uncover a history of violations indicating unsafe driving habits.

Drug Testing

Since many employers offer drug-free workplaces, drug testing has become more commonplace in certain professions. However, some job applicants believe drug tests may violate their privacy rights. In addition, many states have passed laws concerning drug tests performed on job applicants by employers.

Other Searches in Background Checks

Other searches include a Social Security Number (SSN) trace to identify names and addresses used by applicants, “credit checks” if a position involves handling money, “international” searches if applicants lived/worked outside the U.S., and “continuous screening” after initial checks. All have legal concerns.

Most Employers Use Background Checks

A 2021 survey from the Professional Background Screening Association (PBSA) and HR.com found that 93 percent of all organizations reported they conducted background checks on job applicants. Employers would be wise to outsource this important task to a background check provider accredited by the PBSA.

Outsourcing background checks means employers must comply with Fair Credit Reporting Act (FCRA) obligations which include obtaining written authorization from job applicants before conducting background checks and providing a “clear and conspicuous disclosure” for a background check “in a document that consists solely of the disclosure.”

The bottom line is that background checks are increasingly subject to regulation, litigation, and legislation on both the state and federal levels. Employers need to carefully select a background check provider that has a full understanding of the unique regulatory complexities surrounding background checks.

ClearStar Provides Background Checks

ClearStar is a leading Human Resources technology company that specializes in background checks, drug testing, and occupational health screening. ClearStar offers background checks that empower employers to make smarter hiring decisions. For more information about background checks, contact ClearStar today.

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Thomas Ahearn - Digital Content Editor

Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources (HR) technology company specializing in background checks, drug testing, and occupational health screening. He writes about a variety of topics in the background screening industry including "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, the Equal Employment Opportunity Commission (EEOC), the Fair Credit Reporting Act (FCRA), HR technology, identity theft, privacy, social media screening, and workplace violence.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.