Background checks useful, but limited
About 73% of employers conduct criminal background checks on all job candidates, according to a 2010 survey by the Society for Human Resource Management, and another 19% of employers do so only for selected job candidates. They can be particularly important in healthcare when a job applicant must be trusted with vulnerable patients and data, but experts caution that background checks have limitations.
Background checks are allowed in almost all states, and some states require checks for some healthcare positions, says Edward F. Harold, JD, a partner with the law firm of Fisher & Phillips in New Orleans. The Equal Employment Opportunity Commission (EEOC) doesn't prohibit their use, but it recently issued new guidance that discourages using background checks too broadly. (See the story, below, for more on the EEOC guidance.)
To best use background checks, first make sure to use a reputable company that can access far more information than you would be able to find on your own, Harold says. Remember that some criminal convictions might not show up in the search because there is no single repository of the data.
Civil offenses also might not show up because some, such as a domestic disturbance resulting in a restraining order, might not be recorded in the criminal record, explains Sandy Glover, CEO of Gold Shield Legal Investigations in Ormond Beach, FL, which performs background checks. "I also recommend checking their professional licensure," Glover says. "Are they really a nurse? Is their license in good standing? Credit reports also can be useful if this person is going to be a position in which they could take advantage of vulnerable people, such as an Alzheimer's patients."
Most employers restrict their searches to convictions, not arrests, because the EEOC has made clear that it sees the use of arrests as highly discriminatory against minorities, Harold explains. (Some employers are beginning to ask applicants for access to their social media accounts to check for negative information. See the story, below, for more on accessing social media.)
Even restricting the search to convictions can have an adverse impact on minorities and men, because they often have more convictions, notes David Christlieb, JD, an attorney with the law firm Littler in Chicago. But conversely, a healthcare employer takes a risk by not conducting background checks.
"The checks are so common now that it would be simple for a plaintiff's attorney to ask why you didn't know that the person you hired had a shady background and then he harmed a patient," Christlieb says. "If you are not required by your state legislature to do background checks, it is still almost expected in the sense that it has become the standard in healthcare to do this. The real question is exactly how you conduct them and what you do with the information."
No matter how you use background checks, have a policy in place before you start checking.
"You must know what you're checking for, how you're checking, and what you will do with what you find. You have to know beforehand how you will respond to certain findings in a background check," Harold says. "Deciding the first time that information appears will only get you in trouble. Consistency is key to avoid charges of discrimination."
No need to check applicants' social media
Some employers are taking advantage of people's tendency to post explicit and sometimes disparaging information about themselves on Facebook and other media by demanding access to those sites before hiring. After incidents in which patient information was posted on Facebook, some healthcare providers might consider monitoring employee sites on an ongoing basis.
Not really a good idea, advises Edward F. Harold, JD, a partner with the law firm of Fisher & Phillips in New Orleans.
"The law allows you to ask if you want, but we advise clients not to. You may be taking on more responsibility than you realize," Harold says. "If you have access to his Facebook, but you don't bother to check it for 18 months, and then the employee does something criminal, you could be asked why you didn't see his posts about how he was going to shoot up the place. You had his password, and you could have seen the warning signs."
Demanding access also could drive away otherwise good employees who think it's just too intrusive, Harold says. "Generally, if someone is posting something on social media that has any real bearing on their work performance or trustworthiness, you'll hear about it from coworkers," he says. "It's better to hear about that way than to take on the responsibility of monitoring everyone's social media."
Enforcement guidance targets background checks
Healthcare providers using criminal background checks should take notice of enforcement guidance on employer use of arrest and conviction records in employment decisions. Previous arrests and convictions might not be relevant to the current job application, the Equal Employment Opportunity Commission (EEOC) says in Title VII of the Civil Rights Act of 1964, issued in April 2012 by the EEOC.
The new guidance clarifies and updates the EEOC's longstanding policy concerning the use of arrest and conviction records in employment, EEOC Chair Jacqueline A. Berrien said in announcing the update. While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions, or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The guidance builds on guidance documents that the EEOC issued more than 20 years ago that explained when the use of arrest and conviction records in employment decisions might violate Title VII.
Unlike previous enforcement guidelines, the new guidance urges employers not to automatically disqualify applicants when criminal records are found, even if the charges or convictions were of a serious nature. Employers should give applicants a chance to explain a report of past criminal misconduct before they are rejected outright, the EEOC says. An applicant might say the report is inaccurate or point out that the conviction was expunged, it might be completely unrelated to the job, or the applicant might show he or she has been fully rehabilitated, the EEOC explains.
The EEOC also recommends that employers stop asking about past convictions on job applications. Additionally, it says an arrest without a conviction is generally not an acceptable reason to deny employment.
The materials for the public meetings held on the use of arrest and conviction records, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.