Is What You See What You Get?

How Do You Do a Background Check?

As Employers, we’re all happy when it appears we’ve interviewed the “ideal” candidate for a position vacancy. He/she is knowledgeable, presents well, and appears to have the correct mix of skills, aptitude and attitude. Reality dictates some applicants are better at interviewing than their current occupation; worse still, background checks may uncover traits or instances where they could actually do harm to your business and reputation. They may also litigate if hired and then “unjustly” terminated. You must establish careful methods of screening applicants and monitoring existing employees. There are several items that you can institute in your company’s hiring practices to reduce the likelihood of this occurring. Here are some preventative steps to take in order to avoid negligent hiring and retention:

  • Every applicant should be required to fill out an employment application that requires the candidate to list employment and educational history. You should review the history to check for gaps of time that suggest that the candidate has had a problem that may not be indicated on the application, such as unemployment or worse yet, incarceration. You can then ask the candidate follow-up questions about any gaps to get further information about him or her before making a hiring decision.
  • The employment application should also require the candidate to list professional references and their relationship to them. He or she should be required to sign a release as part of the application, giving you permission to contact both references and former employers to obtain additional information about them. Finally, the application should contain an affirmation clause that is signed by the applicant stating that the information given on the application is true and correct.
  • CCH (www.cch.com), the tax and legal publication source, recommends when hiring employees for jobs in which the safety of third parties is particularly at issue, you may wish to inquire into the criminal history of the job applicant on the application. It is a violation of federal law to ask about the arrest records of potential employees. You may, however, ask the applicant about whether they have any prior convictions. If you do that, you must be able to show that the disclosure of prior convictions was related to the job in question and was not used simply to bar employment of persons with a criminal conviction.
  • Conduct personal interviews of prospective employees. That gives you the opportunity to follow up on information received in the job application, ask questions not covered in the application, and have another chance to get information from candidates that show whether they will be competent and safe employees. A personal interview also allows you to make your own assessment of a job candidate’s character. Pay attention not only to their verbal answers, but body language; did they hesitate or shift uneasily in their chairs when asked about performance or gaps in employment? Are they able to maintain eye contact during this time? Sometimes the unconscious can be an indicator that further probing is necessary.
  • Next, you should check references and contact former employers to ensure that there is no information about the candidate’s background that the candidate did not disclose. If a job candidate has a history of attitude issues or other behavior that would make him or her disruptive to your organization, references and former employers are likely to know about it. When contacting references and former employers, you should specifically inquire about the candidate’s honesty and reliability, as well as whether he or she has any traits that would make him or her unfit as an employee, such as anger management problems.

Once an employee has been hired, you must still take care to monitor his/her fit with your other employees. For example, any allegation of misconduct by an employee should be thoroughly investigated. Your corrective action will depend on the seriousness of the employee’s conduct. If the conduct was inappropriate, but not necessarily serious, it may be enough for you to simply discipline the employee.

Additionally, if an employee seeks to change positions or take on new job responsibilities, you should reevaluate his or her suitability for the new position and duties sought. If they are not currently suitable, develop a constructive plan of development that will allow them to work towards that goal.

Last, you must document all disciplinary measures taken, including the dates that each measure was taken. Keep job applications and personal interview notes with the employee’s personnel file. You should take notes of all conversations with references and former employees, and they should also be included in the personnel file. In addition, all discipline or other corrective actions should be documented in detail and filed with the rest of their information. That documentation can be used to demonstrate the care you took to ensure that employees hired and retained were safe and competent to the best of your knowledge. It is the employee’s right to view their file if they so request.

Negligent hiring and retention are potential liability sources for us as Employers. As we are in control of much of this, it is up to us to select and retain employees who are safe and competent to do the job and work with other people. By establishing a process of evaluating potential employees and monitoring existing employees, we can create a better workforce while avoiding liability for negligent hiring and retention.

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