While this section is not to be construed as legal advice, nor intended to be comprehensive, here are a few of the legal aspects surrounding background checking. HireRight always advises its clients to consult with their employment counsel when establishing a background checking program.
Surveys suggest that over 80% of companies conduct some type of background search, often including one or more of the following: criminal records checking, reference checking and past employment verification.
As more companies utilize background checks to evaluate job applicants, the companies that do not conduct background checks, or that only minimally screen their candidates, become more attractive to candidates who know that they may be unable to pass a thorough background check. "Adverse selection" in the context of candidates vetting their employers refers to this phenomenon. Instead of employers vetting their candidates, candidates vet their employers.
Ideally, the background check can help reveal whether or not a person told the truth (i) to questions on an employment application, including whether they have a criminal record, and (ii) in what they stated on their resume. Depending on the employer's preferences and objectives, the background check can be as basic as checking county criminal records, or as comprehensive as also checking Federal criminal records and motor vehicle records, verifying past employment and education, conducting reference checks, and drug testing. In our experience, and on average, approximately 10% of the time a Felony or Misdemeanor criminal record will be reported on an applicant's background check report. (In some cases the employer may determine the record(s) warrant denying the applicant employment, while in other cases the employer may, e.g., determine the record(s) not to be sufficiently relevant to the position and thus not in themselves a basis for denying the applicant employment.) With respect to non-criminal searches, the background check may, e.g., reveal discrepancies between actual and reported dates of employment, job titles, and educational degrees.
This depends on a variety of factors, not the least of which includes the goals and budget of the employer (e.g., search speed vs. breadth/depth, budget, etc.). Criminal record searches generally are at the foundation of an employment background check – due in substantial part to protect its workforce and prevent against negligent hire claims. Searching the county courthouses in the areas where the person has lived is an industry best practice. In addition, various database searches can be conducted to identify additional jurisdictions in which it may be advisable to search the applicable courthouse, and Federal level criminal record searches also can be performed. Beyond criminal records searches, additional screening options may include Motor Vehicle Records, Employment and Education Verification and drug testing.
The types of criminal records searches performed within a background check can vary significantly from employer to employer, even for Fortune 500 companies. In our experience, we generally have found that Fortune 500 companies choose at minimum a screening package that searches county criminal courthouses, in the jurisdictions where a person has lived for the past 7 years, to find Felony and Misdemeanor records dating back up to 7 years.
Because state laws and industry regulations vary, this is a question best left to your legal counsel. That said, motor vehicle record checks may be appropriate and advisable for applicants whose job description will include operating machinery or motor vehicles. Employment check credit reports (which do not provide credit scores) may be appropriate for certain positions, such as those with senior financial responsibility. Some employers will conduct drug tests, or international criminal searches if they are operating internationally. Each of these specialty searches raises various legal and regulatory issues, so we advise that you consult experienced employment counsel when building a screening program and related screening packages.
Aside from the internal time a company may spend, background checks ordered from providers range from a few dollars to find addresses to hundreds of dollars for more extensive investigation. Our experience is that on average, the typical packages ordered range from about $30 for basic criminal searches to $100 for packages that include more extensive criminal searches (e.g., Federal Criminal and Terrorist Watch List) as well as employment verifications and motor vehicle records searches.
A growing number of cities and states have begun to prohibit an employer’s inquiry into a candidate’s past salary history, with limited exceptions. You should discuss your organization’s compliance strategy as it relates to these laws with your legal counsel.
The registrar at the school or institution in question can be contacted directly and will give instructions as to the steps required. Most schools require that you fax the signed consent form from your applicant. Schools vary in their response time, and may take anywhere from hours to weeks to respond. Some background screening providers [such as HireRight] offer services to do this work for you.
Gaps can be good or bad, depending upon what occurred during them. However, identifying that there are gaps is a starting point for further discussion.
We provide you with whitepapers and other reference materials that can help you to understand your employment background screening obligations under the FCRA. We also have sample forms and notices for your reference. The compliance certification in our Service Agreement provides an overview of the fundamental compliance obligations to which you must comply. We do not give legal advice, however, so we always recommend that you have legal counsel review your proposed screening process and forms to ensure that you are complying with all relevant laws in your ordering and use of background reports.
The FCRA and certain state laws generally require the employer to make certain disclosures to the applicant to be checked, and to obtain the written or electronic consent of the person to be checked prior to conducting the check. The FCRA also requires that the disclosures and consent be on a form separate from the job application. HireRight makes a sample applicant Disclosure & Consent form available to its clients.
HireRight Express's login page has the FCRA guidelines. In addition, HireRight provides a compliance checklist inside the login. You may also find a copy of the FCRA here:
Copy of FCRA Compliancy Rules
As a best practice employers generally extend an offer conditional on the successful completion of a background check. While the FCRA does not specifically require this, certain city, county, and state laws may do so. Please consult your legal counsel to ensure compliance with applicable laws especially as they relate to “ban the box” compliance and pay equity measures.
When using a 3rd party like HireRight or trying to contact the courthouse directly, there are usually two components of cost. The first is the time associated with researching court records. The second is any cost levied by the courthouse, the state or any entity contracting with the courthouse in order to access the information. It has been estimated that about 1/3 of counties in America charge some fee or surcharge, with the highest single amount charged currently being by New York counties at $55/search. An average order with county records will have about $2 per county added to it based on these surcharges, but in the case of HireRight no profit or mark-up is added to these government charges.
A reputable background check uses the SSN for 2 primary reasons. The first is to establish some trustworthiness of the information, by validating whether the applicant provided an SSN that is real and issued after the provided date of birth. The second reason is that the SSN helps to find past addresses associated with the applicant so that more targeted criminal searches can be used in specific county courthouses. Without SSN, addresses could be obtained that are related to someone with a similar name but not the exact person you are trying to check. Note that contrary to popular belief, the SSN usually is not used in researching the criminal records themselves. Courthouses do not typically store the SSN.
By far the two most important pieces of information are a correct Date of Birth and correctly spelled First and Last Name. Next in priority is the Social Security Number. Although criminal records in America generally do not include SSN, this number often is used in two ways: (1) often employers will hire HireRight to "validate" the number to ensure that the SSN is a valid number that was issued AFTER the person was born; and (2) to identify past addresses of the applicant to initiate checks in the associated geographic counties where criminal activity was more likely to have occurred.
The easiest way to find previous addresses and counties is to request the SSN from the applicant and then to conduct what is called an Address History search or a Social Security Number Trace. Note that reputable providers will include this into a package and do the work for you by taking the counties that are revealed and searching some or all for criminal records. Many employers like to ask applicants to write down past addresses, as an additional trustworthiness test to compare gaps in the resume and results from the Address History.
Don't get these confused! Neither type of criminal search is perfect or comprehensive. But each serves a different purpose. Federal criminal searches can take place in single or multiple Federal districts across the country. The types of criminal records stored in these locations are related to Federal offenses including crimes that crossed state lines, white collar crimes, etc. There are far fewer Federal records than county courthouse records and the odds of finding a Federal record are lower than a county record, although when a record is found it tends to be serious. National criminal searches are attempts at consolidating criminal records from any counties that will provide records to database owners/managers. These records generally are Felony and Misdemeanor related, are partial or full records that you would find at the courthouses themselves, and may or may not be updated recently. National searches are a great way to search for records on people that moved a lot.
We recommend that you not conduct a criminal background check on a person without their Date of Birth (DOB.) The DOB is a primary identifier used by almost all courthouses in America. Although in some cases, HR departments have chosen to not ask for DOB during the application process to avoid any appearance of age discrimination, we find that it is standard industry practice to ask for this on the "Background Check Consent Form" which can be kept separate during the hiring process if need be. Most non-criminal checks do not involve the DOB.
We do not advise employers to compare National database to Local County searches based on extensiveness. In our view, National databases are not a replacement, but rather a lower-cost option to quickly conduct a broad geographic criminal search when, e.g., no other information is known about a person. Often databases described as "national databases" do not include all states and/or counties, and often the information may not be current. One way to think about National Databases vs. local county courthouse searches is to think about fishing in a lake. If you have limited time or money, you can either move around the lake casting in lots of locations once, or you can stay in a few spots that were recommended since others had success there before. In this case, moving around the lake is like a National Search. It's less expensive, may catch something in a location unknown to many, and in our experience has a lower probability of success on average. The local county courthouses cost more to research, focus on areas of past residence since statistics show that on average this is where people commit crimes, and results in more records found on average. It's often a productive strategy to combine both the county and national searches.
The industry uses the term "Turn Around Time" to describe how long a background check takes. The times vary significantly based on what searches are conducted in the check, the particular courthouse where records are being search, and various other factors. 3rd party providers often use this to their advantage in advertising by mentioning the word "instant". The truth is that many searches take minutes or hours and some take many days or even a week. In our experience, the average criminal records search at a county courthouse takes approximately 2-3 business days, with it being longer for verification of employment and education.
About 70% of the time, HireRight's National Criminal Database search is instant within seconds or minutes. But whenever there is a possible record found, HireRight conducts further research at the applicable county courthouse. HireRight believes, and the state of California agrees, that employers and applicants deserve to receive information that is complete and timely. Therefore, HireRight uses the database search as a preliminary tool. When any potential records are found, HireRight then searches the corresponding courthouse to help ensure that the potential record in fact relates to the applicant and not just someone with the same name. Also, the information is checked for accuracy and timeliness by going to the courthouse records, verifying that the records are legally reportable for employment purposes, and that all of the relevant information is made available about the record. HireRight finds that this extra step of quality and compliance is appreciated by serious customers.
Talk to a HireRight Sales Specialist. Many companies have specific requirements of their vendors. If a company is a customer of HireRight's and has a vendor screening program with HireRight, we'll be able to help you with the requirements. Ideally, you will be able to get the requirements directly from the customer or vendor, but if they are not specific, our team can consult with you.
Names are critical to getting accurate criminal records. Because the United States does not have a standard policy across states and counties for record keeping, you should not assume that counties will store maiden names or alternate names in criminal files. Therefore, although it may seem to be costly, industry best practice is to conduct background checks on each name for names used within the last 7 years. This applies most often to last names, but to the extent that first names are dramatically different for any reason, this too could impact searches for criminal records.