Background Checks

Background checks are vital in recruiting workers and should be part of the hiring process. But businesses struggle to scrutinize and validate a candidate’s background and experience while complying with legislative mandates and guarding against litigation.

Employers can understandably be confused by limits affecting background checks, such as ban-the-box. Because of these limits, it is important that key employees of the business be educated on the need for background checks. This process gives businesses important information they can use to make informed hiring decisions, ensuring safer workplace environments and more productive employees.

Thorough background checks provide hiring managers with details about a candidate’s criminal convictions and pending charges. This allows managers to make decisions on the candidate’s merits, not an irrelevant conviction. An individual’s actions that led to a conviction many years ago, for example, would not necessarily reflect who that individual is today. If the arrest occurred 10 plus years ago, would the candidate pose a threat to a business, employees, or customers? The weight of the hiring decision should be made against the specific job role. The Equal Employment Opportunity Commission recommends that individualized assessments and other factors be considered, including the nature of the conviction, the length of time served for the offense, and the relationship of the type of conviction to the position. If a candidate meets all qualifications, he or she should be given a chance to explain the circumstances of the conviction. Having such information helps employers make the best decision for both parties involved.

Making a bad hire can cost a business in time, morale, negligent hiring litigation, and, last but not least, the bottom line.

Background Checks - Best Practices

Background checks help identify candidates who could cause potential risks to a business. Remove uncertainty by implementing the following best practices:

Create a consistent background check system

Implement the system and follow the process on a consistent basis to help eliminate confusion among your workforce

Comply with federal, state, and local laws and Equal Employment Opportunity Commission (EEOC)

Provide written consent forms that are separate from the application
Establish fair rejection guidelines, including individualized assessments
Comply with pre-adverse action and post-adverse action notification requirements
Protect privacy processes for candidates

Partner with a third-party vendor

Reduces potential error in recording data

Establish and implement a background check policy

Set clear expectations to protect from discrimination

Evaluate the Program

Because of rapid changes in laws, regulations, and technologies, employers should consider a regular self-audit
Involve legal counsel when necessary when conducting self-audits

Drug Screens

There are a number of reasons employers need up-to-date internal substance testing policies. Policy updates should include an expansion of drug testing to screen not only for illicit drugs but also for prescription drug abuse because of the increased use of addictive medications. The testing policy may need to be reviewed within your organization and, as an employer, you have several options: to test pre-employment, post-accident, in response to reasonable suspicion, for cause, or at random. If your organization employs individuals with a Commercial Driver’s License, federal regulations impose specific testing requirements, both as to method and type of testing, that may not apply to all employees. Implementing a substance testing policy provides significant benefits, not only for employers but also for employees, as drug testing can be a risk management strategy for reducing and preventing drug-related incidents in the workplace. It is important to always respect the privacy and confidentiality of employees.

A best practice when screening employees for drug use is to consider the available options. As an employer, you should ensure that the screening identifies the correct substances that you need to look for within your organization. Screening tests only look for concentrations of a drug above a certain level; lower amounts might not be identified. Tests can have from four to 10 panels, specifying the number of drugs being tested. Also, not all tests are made to recognize opioids and their synthetic versions.

A positive drug test does not have to mean automatic termination for the employee involved. As an employer, you can implement education and awareness interventions and the employee can be referred to an Employee Assistance Program (EAP) in lieu of termination. An EAP can be a critical resource in helping employees with substance abuse disorder, giving them a way to get the treatment and help they need to stop the cycle of drug or alcohol misuse. In fact, research conducted by Weisner C and others states that employer supported and monitored treatment yields better, sustained recovery rates than treatment initiated at the request of friends or family.

An employer should make sure to seek expert legal advice regarding federal, state and local guidelines when developing testing policies and procedures.

Sample Drug & Alcohol Testing Policy

Be certain to have any drug or alcohol testing policy reviewed by counsel to see that it complies with federal, state, and local requirements.