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) does not prohibit their use, but it recently issued new guidance that discourages using background checks too broadly.

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 in a position in which they could take advantage of vulnerable people, such as an Alzheimer's patient."

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.

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."

Sources

• David Christlieb, JD, Attorney, Littler, Chicago. Telephone: (312) 795-3264. Email: dchristlieb@littler.com.

• Sandy Glover, CEO, Gold Shield Legal Investigations, Ormond Beach, FL. Telephone: (386) 295-6558. Email: sandy@goldshieldli.com.

• Edward F. Harold, JD, Partner, Fisher & Phillips, New Orleans. Telephone: (504) 592-3801. Email: eharold@laborlawyers.com.