Screen Employees to Avoid Liability

Screen Employees to Avoid Liability  


Employee Screening

Failure to screen employees can mean future liability issues

March 2, 2021

Reduce future liability risks

Screening potential employees is a good risk management practice and can reduce future liability issues. Employers are responsible for workplace safety so screening candidates is essential.

Legality of background checks

Staffing agencies must balance clients’ job specifications while protecting themselves from claims of negligent hiring. This is difficult as different jobs have specific risks, so staff need to determine what these are to mitigate them. But recruiters need to understand and work within the laws surrounding background checks.

Much information is now available online. Some is in the public domain. Other information you pay a fee to access. Federal law (Title VII of the Civil Rights Act of 1964) says all employees and job applicants are to be treated equally. And there are strict guidelines set out by the Equal Employment Opportunity Commission (EEOC) and Fair Credit Reporting Act (FCRA). It is against the law to conduct background checks based on someone’s ethnicity, country of origin disability, medical history, color, religion, or sex.

As well knowing Federal law, staffing agencies need to understand local laws in their state. Some states restrict employers from receiving information about a person when there was an arrest but no conviction. In other states you cannot obtain criminal information that is more than seven years old.

Advantages of employee pre-screening

Responsible employers screen all potential employees. It helps avoid the cost of fraud, theft, and lawsuits caused by the actions of employees, and protects an organization’s reputation. It also:

  • discourages candidates from lying about themselves and prevents falsifying credentials
  • encourages honest, open communication
  • removes any doubt during the hiring process as you base decisions on hard evidence
  • indicates due diligence and risk management
  • protects staff and clients.

Selecting the right candidate for the job is crucial as hiring staff is a long-term investment.

Background checks

Background checks provide financial, professional, personal, and criminal information about a candidate. This gives greater insight into their suitability for a client’s organization.

When recruiting for a client, select the most appropriate screening options to suit the requirements of the position. This can include all or any of the following:

  • employment history including professional references
  • validating a Social Security Number and eligibility for working in the country 
  • criminal records for a history of imprisonment and arrest information, sex offender status
  • verifying education and qualifications
  • terror watch list
  • driving records
  • drug test results
  • online presence including social media
  • credit reports including accounts with collection agencies and bankruptcies.

Pre-screening checklist

Pre-screening checklists assist in evaluating company background check policies and procedures. It assists risk management and leaves an audit trail in case there is ever a need to defend your recruiting practices. It also provides consistency with clear procedures for staff to follow.

  1. Auditing pre-screening processes
    • Does the company have a procedure for auditing candidate screening policies and processes yearly?
  2. Develop consistent screening practices
    • Does your staffing agency have screening procedures and policies in place? 
    • Do you review resumes and applications for possible red flags?
    • Are gaps in a candidate’s employment history considered
    • Are there procedures for candidates offered employment before completing background checks?
    • Is making the screening process positive for all candidates a priority?
  3. Provide pre-screening training
    • What training is in place for recruiters who carry out background checks?
    • Are recruiters accountable for following company pre-screening policies and procedures?
    • Do recruiters understand the different types of background checks and how to use them appropriately?
    • Do you check education qualifications and achievements?
    • Do you check past employment?
    • Do you complete criminal searches?
  4. Document responsibilities for screening
    • Is the process for completing pre-screening well-documented? Who is responsible?
    • What are the consequences for failing to follow the organization’s pre-screening policies?
    • Do you have the experience to conduct background checks in house?
    • Are there written policies, procedures, and practices in place for background checks for casual and part-time employees?
  5. Legal screening compliance
    • Do you train staff to understand local, state, and federal laws to avoid discrimination?
    • Do you notify candidates, in writing, before carrying out background checks and the types you intend to complete?
    • Do you get written permission to carry out background checks from candidates?
    • Do the policies and procedures comply with legal requirements?
    • Do the policies and procedures meet legal requirements for using negative criminal information?
    • Do you have procedures in place if someone with negative criminal information is recruited?
  6. Understanding the limitations of background checks
    • Does your job application form contain the correct language?
    • Are you completing background checks in-house? If not, do you understand the policies and procedures a third-party use for pre-screening candidates?
    • Do you understand criminal record databases have limitations?
  7. Review, update, and communicate
    • Do you review and update background screening policies and procedures on an annual basis?
    • Are you communicating your policies and procedures to company recruiters and managers?
 

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Disclaimer: Risk management support provided by OmniSure Consulting Group is not intended nor should it be construed as the rendition of legal or medical advice, nor is it intended to replace legal or medical advice. Information provided by OmniSure Consulting Group and our authors is for illustrative purposes only and is not intended to dictate or replace company policy. Reproduction of this tool is authorized to OmniSure subscribers only.
 

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