Background Screening 101

You’ll often hear that conducting background checks and thorough due diligence are essential to avoid accusations of negligence. Yet, what does “negligent hiring” mean? It is another central element of background checks 101. The easiest way to answer that question is by a quick example:

Suppose an applicant has one or even several prior convictions for aggravated assault. A short-staffed employer cuts corners and does not order a background check on the individual, instead hiring them immediately. Six months into the job, the individual snaps during a disagreement with a coworker and lashes out, seriously injuring the coworker. Learning that there was no background check and a history of violence at play, the injured coworker sues the business and wins a judgment worth millions of dollars.

Though this is an extreme example, it illustrates the fundamental issue. If you don’t take steps that could reasonably uncover adverse information about a candidate, you might be liable for the harm they cause that you could’ve foreseen. Due diligence and thorough vetting are vital to establish that you did as much as possible to hire safe, reliable employees.

One of the most common questions about criminal background checks is whether reports will show arrest records.

The answer depends on the state. Some states have laws prohibiting employers from asking about arrest records or using them for employment-related decisions. Since arrests are not proof of guilt, they are unreliable indicators of a potential problem. Their use in hiring considerations can often be unfair as a barrier to employment because arrests don’t tell the truth about the situation.

In some cases, non-conviction arrests can appear on a background check. This situation is most likely when the arrest record is seven years old or less, as the FCRA still allows such reporting. However, many consumer reporting agencies choose not to report non-conviction records due to their potential for misuse and confusion.

At backgroundchecks.com, we always exclude arrest history information from our background check reports to protect our customers from compliance issues. To learn whether your state legally allows the use of arrest records for hiring, read our white paper on the matter.

Not all criminal proceedings end in a conviction or an acquittal. Here’s another important lesson in background checks 101: sometimes, you may see that a criminal charge on an individual’s background check has a status of “dismissed.” A case may receive a dismissal before it goes to a formal trial, or it may occur during the trial. A judge may issue a dismissal for many reasons, such as a finding of insufficient evidence to support the charges. A prosecutor may also dismiss the case if they uncover an error or do not believe they can take the case to a “guilty” verdict.

Similar to arrests, dismissed cases are not proof of guilt. However, a dismissed case may appear on a candidate’s background check. An arrest that never led to a criminal charge is one thing, but a criminal charge stays on the person’s record even if a court dismisses the charges or the case ends in a not-guilty verdict.

Just because dismissed charges may appear on a background check doesn’t mean employers must consider them. Organizations usually recognize the difference between a formal conviction and a charge that ultimately went nowhere. Since you cannot assume guilt or wrongdoing based on a dismissed charge, avoiding them as the basis for taking adverse action is usually advisable. Read our full post about dismissed cases and background checks to learn more about this subject.

Some states allow individuals with convictions to request a “clean slate” after some time. Other states automatically clear an individual’s record of minor crimes or non-violent felonies once such conditions exist—usually several years without additional criminal charges.

A sealed record vanishes from public view and only remains accessible to law enforcement and court-authorized groups. Expungement removes the record from a candidate’s history as if it never existed. Both conditions affect the visibility of criminal records.

If a candidate successfully petitions to have their criminal records sealed or expunged, those convictions should no longer appear on a third-party criminal record check report.

Does your company employ candidates whose criminal histories make hiring or providing specific benefits challenging? At backgroundchecks.com, we designed a program called MyClearStart to place information on expungement in the hands of applicants.

Traffic tickets or other driving-related infractions will often not appear in criminal background check reports. Most speeding tickets are civil infractions rather than misdemeanors or felonies not reported on criminal history checks.

That’s not to say employers cannot find traffic citations with another background check. For example, motor vehicle record (MVR) checks offer a way to find this information and are typical for jobs involving vehicles or heavy machinery. In some industries, it is even mandatory by law for companies to consult a candidate’s driving record. Accidents and moving violations - like speeding or failure to yield - may appear on this report.

Of course, there are some driving offenses considered misdemeanors or felonies, including reckless driving and driving under the influence of alcohol or drugs. These convictions will appear on a criminal background report. DUIs will also be on a motor vehicle record, especially if the intoxication led to an accident or injuries.

To learn more about what information may appear on a driving history check – from traffic tickets to license classification – visit our driving record background check product page.

How far back a third-party criminal record check goes depends on the state. No federal law regulates the lookback period for criminal history checks regarding convictions. The Fair Credit Reporting Act (FCRA) does have rules limiting the “adverse information” a credit bureau can report about a consumer. These include records of arrests that did not lead to convictions. There is no corresponding rule for convictions, which could theoretically appear on an individual’s background report forever.

Most states decide on this matter individually. A term of seven years is the most common lookback period in states that limit the reporting of convictions, such as California and Colorado. In many other states—Florida is one example—there is no restriction on how far back an agency may report convictions. Speak with your provider about their lookback period and discuss whether you need more in-depth data on a candidate.

Criminal history searches are just one part of a thorough pre-employment background check process. In addition to reviewing criminal records, most employers take time to verify the information their candidates provide on resumes and job applications. There are good reasons to do so—verification informs you about a candidate’s trustworthiness. In today’s competitive environment, it’s also essential to avoid hiring someone under false pretenses.

Unfortunately, lies, half-truths, or embellishments are common in the current job market. Surveys consistently reveal that individuals lie frequently about their educational background and job history. Unfortunately, a criminal background check reveals nothing about a person’s past employment or education. Since such checks only concern public court records, they aren’t practical tools to help employers flag lies about work history or college degrees.

Instead, you must confirm these details using subject-specific verification checks. Various verifications are available from background screening companies, such as backgroundchecks.com, including employment history, education, professional licensing or certification, and reference checks. Each provides essential benefits and offers insight into what an applicant tells you.

An employment verification check confirms the validity of a candidate’s work history information on their resume. It’s not uncommon for job applicants to embellish their work history to make it look more impressive to a prospective employer. That might mean tweaking a job title, changing a start or end date, or listing job responsibilities beyond the scope of the position. Employment background screening involves contacting previous employers—usually HR staff—and verifying the accuracy of these data points.

What an employer can or cannot say about a previous employee is a subject of concern and confusion. If you are an employer, you may wonder what you may ask another company about a job applicant. You might also wonder what you can say if an employer contacts you about one of your past employees.

Contrary to popular belief, no federal law restricts what employers can disclose about previous employees. For instance, if the applicant’s position ended in a firing or termination, the employer can share that detail and explain the reasoning behind the decision. Provided the facts are truthful, and you do not stray into “editorializing” about the individual, you can’t face accusations of defamation for relating what happened.

However, just because there is no federal law on the subject doesn’t mean employers are always open to discussing everything about their ex-employees. Most employers tread carefully here for fear of defamation lawsuits.

Subsequently, employers don’t typically want to comment on subjective questions, such as character or work ethic. Especially if the employer doesn’t have anything good to say about their ex-worker - they don’t want to face a lawsuit and time in court for slandering that person.

So, instead of asking questions that focus on an employer’s opinions about your applicant, most employment verification checks focus on objective and easily verifiable details. These include verifiable employment dates, job titles, duties or responsibilities, and sometimes salary information. However, some states outlaw the consideration of past salaries for future compensation. Review the law in your area before asking questions about an applicant’s salary.

In most cases, job seekers have a list of 2-3 professional references that they submit alongside their resume, cover letter, and job application. Theoretically, these references are people willing to speak favorably about the job seeker’s skills, abilities, work habits, and more. However, since job seekers ask references to speak on their behalf, reference checks can touch upon subjective topics that work history verifications usually cannot, including personality, character, and work ethic.

Read on to find out how we can check your candidate’s references.

A civil history background check is entirely different from a criminal background check. Where the state brings criminal cases against defendants, civil cases instead originate with filings by the alleged victim. For instance, if someone sues their neighbor over a property damage claim, that case becomes part of the civil court history for the plaintiff and the defendant. Therefore, a civil background check would turn up information about that case.

Note that there are two types of civil history background checks: county and federal. Read our blog post to understand what shows on these different civil history records available from background screening companies.

Like employment history, education history is a resume detail employers may want to verify about their candidates. Education verification can be crucial for pre-hiring due diligence, especially in academia or jobs requiring specific degrees or credentials. You can check our product page for education history checks to learn more about how they work and why they are essential in the background check process.