Purpose

While employees can be the company's most valuable asset, some employees can also pose a security risk. Despite what many people think, crimes committed by "insiders" greatly outnumber crimes committed by outsiders at most companies. In fact, in many organizations, it is believed that as much as 80% of all security losses can be attributed to acts committed by people inside the company. In addition to the company's own employees, these "insiders" can include employees of vendors, contractors, and temporary employment agencies who have access to the facilities.

As a general rule, the habits and behavior of people tends to be fairly consistent; people generally do today what they did yesterday, and will do tomorrow what they did today. This rule can be applied to criminal behavior: people who have committed crimes in the past are more likely to do so today, while people who have been honest in the past are more likely to continue to be honest today and in the future

To be sure, there are exceptions to this rule. There are well-publicized cases where people who have never previously been in trouble with the law go on a rampage and commit a sensational crime. There are also cases where people with an extensive criminal history turn their life around and become exemplary citizens. But by in large, past behavior is a fairly reliable indicator of how people might perform today.

Because of this fact, employers can benefit greatly from learning as much about an applicant as possible before making a job offer. Traditional sources of information include the employment application, resume, and letters of reference from previous jobs. Checking and verifying things such as employment history, education, degrees earned, and certifications and licenses is a usual part of most hiring processes. But these traditional sources of information often don't provide data concerning the applicant's criminal history. 

In fact, some references may be reluctant to provide any unfavorable information, including criminal history, because of legal concerns or because they may fear retaliation from the applicant.

To learn whether or not an applicant has a criminal history, a specific "security background check" should be conducted for each individual prior to employment. This process is also sometimes called "security screening" or a "criminal history check".

Type of Security Background Checks

Some very large companies have the resources to conduct security background checks using in-house staff, but this is the exception rather than the rule. Most companies lack the staffing as well as the knowledge and skills to properly conduct a security background check, and instead outsource this process to an outside service provider.

There is a wide assortment of different types of security background check services available. At one end of the spectrum are simple on-line services where the applicant's name and date of birth can be entered into the computer and instant results can be obtained. This type of background check can cost as little as twenty dollars. At the other end of the spectrum are full-scale security background investigations that can take months to complete and can cost tens of thousands of dollars to perform.

There are a number of different types of background checks that fall in-between these two extremes. These background checks differ primarily based on how extensive a process is used to determine the applicant's criminal history. Simple checks may only search the records of the counties and states where the applicant has claimed to live. More elaborate checks will do a search of national as well as local databases, and independently verify the applicant's social security number and past addresses. In general, the more comprehensive a background check is, the more that it costs.

We recommend that the type of background check that is conducted be appropriate for the type of job that the applicant is being considered for. As an example, a candidate applying for a job as the chief financial officer would warrant a more thorough background check than a candidate applying for a job as a landscaper. Any position of trust where an employee would have an opportunity to commit a significant theft or act of fraud should require a comprehensive pre-employment security background check. Jobs that place an employee in contact with children or other vulnerable persons should also require a more thorough security background check.

We suggest that any security background check include at least the following:

• Social Security Number (SSN) verification: Confirms applicant’s name against the SSN provided and identifies any possible alternative names or alias's that may have been associated with this SSN.

• Address verification: Confirms applicant’s current and previous addresses.

• Local criminal record search for felony and misdemeanor convictions.

• National criminal record search for felony and misdemeanor convictions.

• Sex offender registry search for known sex offenders.

Determining Disqualification Criteria

Once the results of the background check are received, the employer must make a determination to accept or disqualify the applicant. If the background check does not uncover any adverse information, the path of action is fairly clear. 

However, if the check does reveal a history of either felony or misdemeanor convictions, the employer must decide if these convictions are grounds to disqualify the candidate.

The first reaction of most employers is to automatically disqualify anyone who has any type of previous criminal conviction. However, the Equal Employment Opportunities Commission (EEOC), the federal agency that enforces the civil rights laws, has ruled that automatically disqualifying people who have criminal records from jobs is discriminatory. 

To quote one source:

“The EEOC has ruled repeatedly that covered employers cannot simply bar felons from jobs, but must show that a conviction-based disqualification is justified by "business necessity." The legal test requires employers to examine (1) the job-relatedness of each conviction, (2) the nature of the crime committed, (3) the number of convictions, (4) the facts surrounding each offense, (5) the length of time between the conviction and the employment decision, (6) the person's employment history before and after the conviction, and (7) the applicant's efforts at rehabilitation. According to the EEOC, the job-relatedness inquiry is the most important, and focuses on whether the job position applied for presents an opportunity for the applicant to engage in the same type of misconduct which resulted in the conviction…”.

It is recommended that employers establish guidelines in advance that state the types of offenses that would disqualify an applicant from each type of job. These guidelines should be developed jointly by your security manager, human resources manager, and legal counsel, and should be based on the "business necessity" test described above. Once established, guidelines should be consistently applied.

Vendors, Contractors, and Temporary Employees

One common mistake is to have an extensive security background check procedure in place for your own employees, yet fail to require pre-employment background checks for the employees of vendors, contractors, and temporary agencies. Many of these employees have the same access to your facilities as your own employees and can pose an equal or greater security risk. In fact, some types of contract employees, such as janitors, are given master keys to the building and often work at times when no one else is around.

Many companies assume that the contract employer conducts security background checks on its own and there is no need for any further precautions. While many contractors and vendors do conduct background checks, many times these are not as comprehensive as needed, and in many cases, employees are sent to your site before the results of their background checks are received. We have also seen numerous cases where contract employees somehow slipped through the cracks, and a contract employee with a criminal history was sent to one of our client's buildings. Often, these discrepancies are only discovered after the contract employee has committed a crime or other unwanted act.

We recommend the following:

• All contracts with vendors, contractors and temporary employee agencies should include a requirement that security background checks be conducted. The contract should specify the type and scope of the background check that is to be conducted, as well as specify the types of past criminal offenses that would disqualify a candidate.

• Background checks for contract employees should be at least as stringent as those required for your own employees.

• Written confirmation that each individual contract employee has satisfactorily completed the background screening process should be required before the employee is given unescorted access to your facilities.

Consequences of Failing to Conduct Security Background Checks

It is our opinion that failing to conduct adequate security background checks is a lot like playing Russian roulette - sooner or later, it will get you. The larger your workforce, and the greater your turnover, the more likely you are to have a problem.

Failure to conduct background checks places your company's assets at risk and can result in the loss of both physical and intellectual property. In addition, failing to conduct adequate background checks may place your company in a position of legal liability if someone you hire causes harm to a third-party as a result of your failure to take adequate precautions.

Three examples of such situations are:

• A person with prior convictions for aggravated assault was hired as a parking valet. This parking valet got into an altercation with a customer and threw him to the ground, resulting in a serious head injury.

• A registered sex offender is hired as a computer support technician. This technician sexually assaulted a female employee while both were working alone in a building late at night.

• A man and wife who both have previous convictions for mail fraud and forgery are both hired by the same contract janitorial company. While working as janitors assigned to different customers, both gain access to human resources and payroll files to obtain information necessary to steal the identities of employees. More than 100 individual employees were victimized as a result of these actions.

In all three cases, the employer failed to conduct a background check, even though the past criminal histories of these employees could have provided an indication that they were likely to commit a similar act again. In all three cases, the victims of these crimes could sue the employer, alleging that it was negligent of the employer to hire these people without adequately checking their background, and as a result of this negligence, the victim was harmed.