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Are employment background checks required?

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HR Best Practices blog series

Navigating the world of HR can be overwhelming—period. That’s why we’ve created a blog series to answer common HR questions. To help answer each question and define best practices, we have three HR heroes with very different approaches to HR: Bythe Book, Sam Blackheart, and Peggy Prag. You may find yourself relating to one (or more) of our heroes depending on the given situation. To see full descriptions of each character, reference our first blog of the series using this link. 


Last time we covered, “Do I have to do sexual harassment training?” Now, let’s see what Bythe, Sam, and Peggy have to say about our next question, "Do I really have to run background checks?"

 

 Background

In 2018, HR.com and The National Association of Professional Background Screeners (NAPBS) released a report indicating that 95% of survey respondents perform some form of employment background screening. Clearly employers see value in background checks, but are they legally obligated to conduct these background checks?
 

Is there a law and/or regulation?

Employers are not required by federal law to conduct background checks on new hires, but many choose to do so as a safeguard against claims of negligent hiring. Many states, however, have legislation in place that requires employers to conduct background checks on employees. With this in mind, we recommend reviewing the laws of your state and municipality regarding background checks to make sure that you’re in compliance with local standards.

You might also check to see if any of the contracts you have in place with customers obligate you to performing background checks or candidate screening. If you do, then while not doing so wouldn’t automatically be a violation of the law, it may put you in breach of a contract.

 

Is there a risk of a lawsuit?

There is a medium risk of a lawsuit. If an employee causes harm to another staff member, client or third party, the employer may be subject to a negligent hiring lawsuit for failure to exercise due diligence in the hiring process.

Take, for example, the lawsuit, Reagan et al v. Dunaway Timber Company et al, in which a truck driver with a history of reckless driving and license revocations was hired by Dunaway Timber Company to operate commercial vehicles. Soon after being hired, the truck driver struck and killed a pedestrian. Dunaway was found responsible for $7 million in damages as a result of hiring negligence.

 

What's the cost of compliance?

If background screenings are not required in your jurisdiction for the types of jobs you offer, there is no cost of compliance as there are no laws or rules with which you are required to comply. That said, employers who choose to conduct background checks on employees and new hires typically pay between $25 and $50 per screening, sometimes more depending on the scope of the screening.
 

What is the risk of bodily harm?

There is a low risk of bodily harm. Companies that do not conduct background checks may overlook important, negative background information about a job candidate that could result in that person becoming an employee and then harming another employee, client or third party.

 

What is the risk of negative public relations?

The risk of negative public relations is low.

 

What is the risk of jail time?

There is no risk of jail time.

 

What would our HR Heroes say is the best practice?

 

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 Bythe Booke: Background checks aren’t that expensive to run, so I think it’s worth the investment—especially if it means that we can protect our employees from harm and limit our company’s negligent hiring liability. Let’s run a thorough background check on each new hire and see if any of the results shed light on the prospective hire’s ability to perform key responsibilities without harming others. We should document all background screenings in our HRIS as proof of due diligence. 

 

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 Sam Blackheart: I’ve often felt like we’re hiring criminals around here, let’s definitely do background checks. Make sure we find the lowest-cost vendor to do them.

 

iStock-165967112Peggy Prag: It seems like background checks are a prudent and low-cost thing to do. I’ll research how we can go about it most efficiently.

 

 

 

Have a question you’d like to see our heroes answer next? Let us know in the comments section below!

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