It may be hard for organizations to believe that trying to do the right thing, can be so wrought with risk. The decision to do background checks is a good one but not understanding the regulations, process, and limitations that exist around this decision can lead to costly contractor background check mistakes.
For this blog, contractors are those individuals who are an extension of the organization but are not directly employed by the organization. These individuals are engaged to complete very specific functions – service, support, install, repair, delivery – and carry the same, if not more, risk for the organization as in the eyes of the consumer, they are the organization. The reason that background checks are done is so that organizations can review information to determine what risk if any, an individual may pose for their organization. This means information like identity, criminal record, driving history, sex offender, and other data may be obtained about potential contractors. After almost 20 years of conducting background checks on contractors, we have seen some very common mistakes and will outline six of these below.
Understanding the Consumer Reporting Regulations
Conducting contractor background checks in the US, especially when using a consumer reporting agency, which is what a third-party screening provider is called, is a regulated process. This means there are very prescriptive steps that must be taken by various parties in the process. Most commonly, the legislation which will regulate background checks is the Fair Credit Reporting Act (FCRA), although other state-level consumer reporting acts may also be applicable. Failing to understand, and comply, with the steps these Acts require is one of the most common errors organizations make when running a background check program. Requirements span items like obtaining authorization, providing appropriate disclosures, sharing the consumer’s rights and copy of the report if adverse information is being reported, retention and record destruction requirements, time restrictions on the relevance of information that can be considered and significant burdens on the accuracy and quality of the information being reported. Additionally, many states are also starting to enact privacy legislation which may impact the background-checking process. If you do not have someone in your organization familiar with the requirements, the penalties for noncompliance can quickly lead down the path to a class action lawsuit.
Abiding by Ban The Box / Fair Chance Requirements
When background checks include criminal record information, there may also be Ban The Box / Fair Chance regulations that need to be considered in order to avoid contractor background check mistakes. The Ban the Box movement seeks to open opportunities for individuals with past criminal convictions and promote fair hiring practices by eliminating restrictions on individuals who may otherwise be excluded from consideration because of their criminal record history. This movement has also given rise to the more common term “fair chance hiring.”
When originally launched, these initiatives prohibited questions about past criminal convictions, most typically on the application form, and specifically at issue is the question, “Have you ever been convicted of a criminal offense for which you have not received a pardon?” The effort was designed to “ban” the use of this check “box” on applications so that the information would not be gathered.
Through Ban the Box protections, individuals are meant to be considered for opportunities based on their work experience, skills, and education; with the criminal conviction considered only later in the process. The Equal Employment Opportunity Commission (EEOC) contends that if employers have access to criminal conviction history, they will use it in their assessment. The desire is to focus on an individual’s suitability for the role before criminal record information is considered.
Under most Ban the Box legislation, the restriction applies only to when the information is gathered and is not a complete ban on obtaining criminal record information. However, over the last decade, these protections have grown to be far more expansive and now may include additional requirements at the application, interview, job offer, or hiring stage. They may dictate how and what information can be used, how far back information may be obtained, and even how long an individual has available to dispute a matter impacting the decision about them. These ordinances, laws, and regulations are further complicated because they may apply at the city, county, or state level OR all of these. This can make compliance difficult at times for the organization, and confusing at best for the individual subject. Be sure you know what laws you are subject to.
Considering Only Relevant Criminal Information
When reviewing criminal records, the nature of the offense, the relevancy of the offense to the role, and the length of time since the issue occurred must all be taken into account. This means that not all criminal records are going to be considered relevant to the role they are being considered for. Having a clear and objective approach to reviewing criminal records is something that many organizations overlook. Doing so risks subjective decisions being made about individuals and their criminal information. When the pressure to onboard a contractor is great, having a previously established risk relevancy guide can be very important to ensure the organization’s interests are properly protected and that critical information is not sidestepped for other priorities.
Using a One-and-Done Approach to Background Checks
The start of this blog started by acknowledging that the decision to conduct background checks on contractors is a good one. What we did not mention at that time is that this is not a finite exercise. Background checks are a point-in-time check of information and as we know, things change over time. For this reason, launching a contractor background check program should include a rescreening process as well. This ensures that with a regular cadence, the individual’s information will be rechecked to ensure it meets the organization’s compliance requirements. Two years appears to be the most appropriate timeframe for rescreens across standard service networks.
Not Including Continuous Criminal Record Monitoring
In concert with a rescreening process, another mistake often seen with contractor background checks is not including a continuous criminal record monitoring component to the screening program [link to ccm article].
Continuous monitoring is the ongoing process of reviewing records on an individual that may flag internal threats and safety concerns. It is a helpful tool in a comprehensive workforce risk management strategy and is best supported when used with a self-reporting policy, which encourages individuals to come forward with any relevant information that may impact contract program participation. Most continuous criminal monitoring sources cover more than 90 percent of the population and help to identify potential behavior that may pose a risk to an organization’s business, customers, brand, and reputation.
Using the individual’s name and date of birth, this service will provide access to near-real-time data from U.S. county jails and Department of Corrections facilities. Incarceration and booking alerts provide a proactive tool and more timely information over a wider geographic area than a local-level county record check, which is a point-in-time search only.
Instead of reviewing only historical results like a traditional background check provides, continuous criminal monitoring is the ongoing process of reviewing U.S. county-level criminal activity as it occurs. Criminal monitoring does not eliminate the need for regular and ongoing background checks but rather supplements those checks with an ongoing measure of risk mitigation.
Skipping an Identity Verification Step
Unlike direct employee hires, contracted individuals are not often known to the organization that is engaging them. For this reason, among others, ensuring your background check process includes an identity search is very important. This step of the process should occur before any criminal, sex offender or driving records are requested since the accuracy of the individual’s demographic information – name, alternate names, date of birth, and address(es) – can impact the outcome of those searches.
A typical identity search will look at the correct spelling, completeness, and variations of an individual’s given and alias names. It may also uncover additional names, often referred to as developed names, which may be returned as part of other searches that are done. It is important to know which of these, or if all of these, names are to be included in other searches. This information is compared against the information the individual contractor provides and will often include confirmation that the date of birth was entered correctly. In some cases, it may be an honest transposition error for the month and day in the birth date to be made. In other cases, this can be a very deliberate attempt to hide criminal records because if the date of birth does not match, it is often not disclosed. The identity search will also confirm the addresses where the individual has resided, and these are used to determine the county and federal criminal jurisdiction that may need to be searched. They also help with the matching information that is used when a record is located.
Hopefully the above provides some useful, actionable information for organizations to create a solid contractor background check program by ensuring they avoid the most common mistakes. There is no doubt that there is a lot to know, stay on top of, and understand so if there is no one up for the task within your organization, consider engaging a partner like PlusOne Solutions, which has almost two decades of experience conducting background checks specifically geared to contractors.
Contents are provided for information purposes only and should not be construed as legal advice. Users are reminded to seek legal counsel with respect to their obligations and use of PlusOne Solutions services.
About PlusOne Solutions
PlusOne Solutions has been an industry leader in the risk management field by specializing in compliance programs that meet the complex challenges of geographically dispersed contractors, vendors, and employee networks. PlusOne Solutions protects companies from possible financial, legal, and reputational risks associated with contractor and vendor relationships while creating safer work environments. To learn more, visit https://www.PlusOneSolutions.net.
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