ATLANTIC CITY, N.J. — Limousine operators are constantly faced with hiring challenges, whether for office, garage or chauffeur staffs. Finding the right person to hire to manage your business is difficult enough.
Once you find that person, making sure the new hire doesn’t have skeletons in the closet that can bite you is another hurdle. Criminals don’t have big flashing neon lights across their foreheads that spell out their backgrounds. Most hide them away hoping no one digs out their unsavory pasts.
Everyone has a past and baggage. Understanding how you can legally learn about that past and what you can and cannot use in hiring an employee is critical to the health of your business.
What are the laws on background checks? Which types of checks do you need to do? Can you do them yourself or do you have to pay someone else to do them for you? Do you have to do them at all? Can you find out all you need to know on social media? What is the cost of doing nothing? Is it worth the risk? The whole concept can be overwhelming. The costs of running a business alone are high enough, but add the layers that are required before you hire someone not to mention the cost, and it all becomes a muddy quagmire that many just want to avoid. Don’t!
Kerrie R. Heslin, Esq., Nukk-Freeman & Cerra, PC and Matt Garbincus, IntelliCorp Records, tackled these tough topics in late October at the LCT Show East in Atlantic City, N.J. Their eye-opening presentation left many operators scratching their heads asking themselves if they were doing enough to protect their business.
Both agreed operators do not really have a choice when it comes to performing background checks. The risks of not performing background checks include theft, violence, reckless driving, falsification of credentials, negligent hiring claims, bad publicity, and time wasted in recruiting, hiring and training. The list could go on and on. Making the wrong hiring decision can haunt your company for a long time, Heslin said. “You may need to repair customer relationships and you may encounter lawsuits if you don’t vet properly.”
Negligent hiring or supervision claims can occur when someone is harmed by an action of an employee. They gave the example of theft toward a client where the company hiring the person should have been aware of the employee’s propensity toward theft and violence.
Types of Background Checks
There are various types of background checks companies can perform: Criminal, credit, driving history, employment history, education history, sex offender, drug testing, I9 employment eligibility, E-verify, and SSN verification/address history. Some checks you or your human resources department can perform while others should be contracted out to professionals.
Verifying employment and education can easily be performed in house while accurate vetting of criminal and sex offenders as part of the criminal background check should be left to a third-party organization.
Both Heslin and Garbincus stressed the importance of understanding the laws in the state and municipalities in which you operate as well as federal requirements. Credit checks are a good example of this. A valid reason to do a credit check is if the position requires the employee to touch money. But credit checks have been contested in court.
“Avoid credit checks unless they are truly essential to the job,” Heslin said. Certain states have set limits on the uses of credit history in hiring and personnel decisions, such as: (NV, CA, MD, CT, HI, IL, WA, OR, VT and CO. Similar legislation is being considered by the US Congress and a number of states and localities including NJ and NY).
Criminal Background Checks
Third party organizations can be used to perform criminal background checks, such as ones for sex offenders. Understand the state law before performing background checks. A good example of this is California where with certain exceptions employers may not use information disclosed on Megan’s Law website for employment purposes.
If you perform the checks, adopt set procedures on how you will use the information, and be consistent. Heslin said the EEOC issued guidelines on April 15, 2012: “Employer’s policy or practice for excluding applicants based on criminal conviction must include an evaluation that such exclusion is ‘job related for the position in question and consistent with business necessity.’ Employers should consider the nature of the crime; time elapsed and the nature of the job. Employers should do individual assessments.”
She explained that the EEOC urges employers to consider job relatedness, seriousness of the offense, and the time that has elapsed since conviction. Again, state laws can differ. In New York, there must be a direct relationship between the offense and the job sought; or unreasonable risk of harm to the public. Employers must consider: Public policy, duties and responsibilities necessarily related to the job, bearing of the offense on fitness or ability to perform job, time which has elapsed since the offense, seriousness of the offense, good information produced by the person with respect to rehabilitation, legitimate interest of the employer in protecting property, and the safety and welfare of individuals or the general public, Heslin explained.
Social media as a tool
Social media is the new norm in our society. Visiting social media pages such as Facebook and LinkedIn in can tell you a lot about a person but when it comes to hiring it may be too much. Birthdates give a potential employer access to their age. Things such as marital status, age of children, sexual orientation and relationship status also may be shown. This data may be considered protected characteristic data and cannot be used when making hiring decisions. Once you see the information you are deemed to know it and it is assumed that you used the information. If you plan to use social media searches, have them done by someone who does not make the hiring decisions and who will not pass the information on. But know that this is a slippery slope and that your own state may have its own rules about this.
Ban the box
Most applications have a box on them that asks if you have been convicted of a crime. In some states, it is illegal to have this on your application, and as a practice in general, Heslin and Garbincus recommend that you remove it. This is a disqualifying question which should be avoided on applications.
Consequences of Discriminatory Background Checks
Knowledge is power. You can learn from the mistakes of large corporations that have made mistakes and have paid the price. Heslin and Garbincus cited a number of cases which have occurred because of background checks.
In Pepsi’s case, the EEOC alleged more than 300 African Americans were hurt by Pepsi’s criminal background check policy. Pepsi agreed to pay $3.13 million.
With BMW, the EEOC alleged BMW criminal background check policy resulted in African Americans being disproportionately screened out from jobs and that the policy is not job related or consistent with business necessity. This case is still pending.
In the Dollar General suit, the EEOC alleged Dollar General criminal background checks resulted in a disparate impact against blacks. This case is also pending.
Background checks are critical to making an informed hiring decision. Knowing how to do them correctly and what you can and cannot do in your state and/or local area will prevent costly mistakes. Take the time to learn the laws or team up with a third-party background check company that can help you in the process. Don’t let those skeletons in the closets come back to bite you later.
How Do You Conduct a Proper Background Check?
• Timing: Conduct the check after the job offer.
• Get written consent (a release form) before performing and let the potential employee know what you are checking.
• Make sure the check is relevant to the position.
• Use third parties to perform the checks to remove you from the process.
• Have consistent written policies — when you review the results and criteria used to make hiring decisions.
• Create internal policies and mandate companywide commitment.
• Make policies available to employees and applicants.
• 30% of all applications include lies.
• One in six violent crimes occurs in the workplace.
• The average settlement from workplace related lawsuits is $1 million.
• 30% of employees admit to stealing from their employers.
• It costs an employer 2.5 times the salary to replace a bad hire.
• 53% of all applications contain inaccurate information.