Everything Employers Need to Know About Adverse Action

There is a right and wrong way to vet, hire, and fire new employees. If you do it the wrong way, according to the Fair Credit Reporting Act (FCRA) and the Equal Employment Opportunity Commission (EEOC), you could face class-action lawsuits, bad PR, and other penalties. In fact, there has been a significant upturn in FCRA litigation against employers in recent years.

Here’s how to properly cover your bases and protect your company when taking any form of adverse action as a result of information gathered in an employee background check.

What Is Adverse Action?

Employee background checks are considered an essential precaution for most employers. They’re especially critical in industries dealing with sensitive materials and at-risk demographics, such as the financial sector, elder care, and child care. When you find something concerning or disqualifying in the results of a background check in these situations, breathe a sigh of relief — the background check did its job, and you just sidestepped a potentially disastrous, costly situation. 

But the decision not to make an offer or to withdraw a job offer that’s already on the table is what the FCRA calls “adverse action,” and it must be handled with care. Officially, the FCRA’s legal jargon in relation to adverse action in employment situations reads, “A denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.”

Adverse action can take many forms, including:

  • Deciding not to extend a job offer
  • Withdrawing an existing job offer
  • Terminating employment
  • Suspending employment
  • Withholding a promotion

If you take any form of adverse action based on any part of the employee background check, you are legally required to provide the candidate in question with appropriate notice. 

How to Properly Provide Adverse Action Notice

The FCRA is the federal legislation that regulates “the accuracy, fairness, and privacy” of consumer reports such as background checks. There are strict civil and statutory penalties for non-compliance with the FCRA’s requirements, and any organization that uses consumer reports to make candidate eligibility decisions can find themselves in the realm of serious liability if they fail to prepare themselves for consistent compliance, especially when taking adverse action.

Prior to conducting a background check on the job candidate, you must provide a disclosure of your intention to run the check and receive written pre-authorization from the candidate, per FCRA requirements. This disclosure will formally inform the candidate that the results of the background check will potentially affect their eligibility.

Once you’ve determined their ineligibility, however, a notice of adverse action should be issued in writing or electronically as follows:

  1. Letter One: Pre-Adverse Action Letter
  2. Waiting Period
  3. Letter Two: Post-Adverse Action Letter

Letter One: Pre-Adverse Action Letter

The purpose of this letter is not to announce that the applicant has been disqualified, but to give them a chance to see the results, contest or correct any mistakes, and discuss the report with the employer before the adverse action is made official.

The pre-adverse action letter must:

  • Clearly state the intention to take adverse action based on the results of the background check results
  • Inform the candidate of their right to request a free copy of the consumer report from the reporting agency within 60 days
  • Include a formal document that summarizes the candidate’s rights as outlined by the FCRA

Most pre-adverse action letters are “bare bones” and simply state something like this:

“We are probably not going to hire you; here is your report and your rights; contact the CRA; we will take final action in X number of days.”

Obviously, this letter does not include any consideration of EEOC issues, including the desire for individual evaluation prior to rejecting the applicant. For your protection, this letter should not only be FCRA-complaint but also worded in a way that complies with EEOC guidance (more on this below).

Waiting Period

The FCRA does not provide any specific timing requirements for when adverse action notices must be issued or how long you should wait after issuing the pre-adverse action notice. However, per Federal Trade Commission (FTC) guidance and the precedent set by recent FCRA court rulings, the recommended waiting period is five days between the issuance of the pre-adverse action notice and the finalizing of the decision.

Letter Two: Post-Adverse Action Letter

This is the notice that informs the applicant that the adverse action has been finalized. It should:

  • Reiterate the applicant’s right to contact the consumer reporting agency within 60 days and request a free copy of the report that influenced the adverse action decision
  • Include the contact information of the third-party consumer reporting agency (name, address, and telephone number)
  • Clearly state that the consumer reporting agency simply provided the report, had no bearing on the adverse action decision, and cannot provide the applicant with any information on why the action was taken
  • Disclose the applicant’s credit score in the event that the state of their credit was a factor in the adverse action decision

EEOC Considerations: What Type of Information is Disqualifying?

While the FCRA governs how adverse action must be handled in the working world, the EEOC monitors the reasons that employers may choose to turn down prospective candidates. The intention is to ensure employment opportunities regardless of race, sexual orientation, political affiliation, age, gender identity, and even — to a certain degree — criminal history. 

For example, an employer’s instinct may be to disqualify anyone with a blip on their criminal record, but it isn’t best practice to do so and can even get you in trouble per “ban-the-box” legislation that may be in effect in your state or jurisdiction. It’s important to stay up to date on the FCRA and EEOC laws that govern your locality.

So what type of information can be considered disqualifying? Some of the most troubling disqualifying background check “blips” include:

  • Sexual offenses (sex offender registration)
  • Financial crimes (embezzlement, income tax evasion, fraud, etc.)
  • History of cyber crime (hacking)
  • A single serious (often violent) crime or a pattern of lesser crimes
  • History of DUIs or drug-related offenses
  • Poor driving record
  • Bad credit history
  • Embellished or falsified work experience and/or education credentials
  • Dishonorable military discharge

However, any one of the above red flags cannot be considered a universal disqualifier, as every job position and applicant are different. As a rule, when troubling information is revealed in an employee background check, the employer should consider the following questions before taking adverse action:

  • Is the information relevant to the job’s responsibilities?
  • Does the position put the applicant in contact with vulnerable populations, such as youths or the elderly?
  • Would the applicant have access to sensitive data?
  • How much time has passed since the relevant offense(s)?
  • Did the relevant offense(s) result in a conviction?
  • Does the job require security clearance?

Official EEOC Guidance on Arrest Records

Official EEOC guidance warns that employers who adopt blanket policies that disqualify candidates with arrest records can face discrimination liability under Title VII if:

1. The policies disparately affect a protected class

OR

2. The employer can’t demonstrate how adverse action decisions based on blanket policies are “job-related and consistent with business necessity.”

The EEOC emphasizes that when it comes to arrest records, employment decisions should fairly incorporate an individualized assessment of the candidate, the nature of the offenses, and how the offenses would reasonably relate to the candidate’s job performance in the position in question.

How the EEOC Explains the Difference Between Arrests and Convictions

When examining the criminal history portion of your applicant’s employee background check, it’s important to consider how the law and EEOC legislation looks at arrests vs. convictions under Title VII.

Arrests

  • Record of arrest is not proof in and of itself of criminal conduct, as many arrests either don’t result in criminal charges (conviction) or the charges are dismissed.
  • Proof of guilt is established in prosecution and not before. Even after an arrest is made and an individual is charged, they are technically to be presumed innocent until prosecuted and convicted.
  • Arrest records are often incomplete or erroneous. Records may not report on a final disposition of the arrest, meaning it is unclear if the individual was prosecuted, convicted, or acquitted. The Department of Justice (DOJ) acknowledges that many arrest records in both the national FBI database and even state criminal record repositories do not include final dispositions or may contain inaccuracies (such as reporting on records that have been expunged or sealed).

Although the existence of an arrest record on its own cannot be grounds for adverse action, Title VII calls for and allows a “fact-based analysis” of the conduct underlying an arrest. After a thorough inquiry into the circumstances, the employer may decide that the conduct of the individual is grounds for adverse action if such conduct makes them unfit for the position in question (i.e., the disqualification is job-related and consistent with business necessity).

Convictions

  • Usually considered sufficient evidence of criminal conduct given the due process of law (trials, guilty pleas, etc.).
  • Conviction records may still contain errors. Records may not report when a conviction is expunged or a felony downgraded to a misdemeanor.
  • Like arrests, policies for adverse action based on convictions must still be linked to and clearly demonstrate the dangers and risks of criminal conduct in relation to the job in question.

The EEOC advises that best practice is to omit questions about convictions from job applications. In fact, some states already require employers to leave questions about criminal convictions for later in the selection process (usually when running background checks on select, viable candidates) so that the individuals have had the opportunity to demonstrate their merit.

Start Hiring (and Firing) With Confidence Thanks to VICTIG

Today, employment screening is increasingly becoming commodity. At VICTIG, we stand out from other screening companies with our innovative software that streamlines the adverse action process and ensures legal compliance within the program. 

When using our quickapp feature, simply enter an individual’s name and email address and you are guaranteed that the person will receive and sign all the proper documents every time. After a report has been run through our system, you also have access to customizable and compliant pre-adverse and adverse action letters. The letters will pre-populate with the individual’s information and include everything you need. All you have to do is print it and give it to the individual. And all of this is free.

Find the best people for your organization now. We’re here to help. Contact VICTIG today.

Poor Punctuality in the Workplace: Is It a Deal Breaker?

Punctuality is important to any organization, and especially to employers. In fact, 41% of employers have fired one of their team members for being late. As you’re working through the hiring process, at what point do you ask the applicant about their punctuality? Does it even come up? Or is this a question you save for their references during the background check?

Depending on your industry and the position in question, the issue of punctuality may not register high on your list of hiring priorities in comparison to other industry-specific qualifications. But in general, punctuality and reliability is a boon to employers. Read on to learn more about punctuality in the workplace, and why it’s important to any team or company. 

What Is Punctuality and Why Is it Important? 

Punctuality is a simple concept: It means showing up when you say you will. When you are punctual, it signals that you care for your team members, you take your job seriously, and you care about meeting deadlines. In almost every workplace, punctuality is synonymous with professionalism. 

When someone is punctual, it doesn’t just mean that they’re able to get places on time. It also means that they have a great deal of respect for their workplace and for their colleagues. When someone is late to an important meeting such as a job interview, it can signal to the interviewer that the candidate isn’t serious about the position — and that they’re likely to be late to work if they join the organization. Consequently, many interviewers will immediately write a candidate off if they are late to an interview without prior notice. 

The Effects of Being Late to Work

Punctuality is a positive trait not just in employees, but in people in general. No one likes to be kept waiting. Waiting for someone to show up can be frustrating and downright irritating. But in the workplace, punctuality has considerable effects. When someone is late, they might cause meetings to be pushed out, impacting colleagues’ schedules. They may also miss important tasks, adding an extra task to another team member’s to-do list. 

Most employers won’t terminate an employee for a single offense, and 30% are okay with employees being late to work every once in a while, as long as it doesn’t become a habit. Some employers are far more lenient, with 18% accepting tardiness so long as the employee completes their work. However, some employers may not consider hiring an applicant if their references report a chronic habit for tardiness. Interestingly, 16% of employees admit to showing up late to work at least once a week according to a CareerBuilder survey. And 29% reported being late at least once a month.

Reasons for Being Late

The same CareerBuilder survey included more than 2,600 hiring managers or HR personnel and at least 3,400 workers across a range of industries. The most common reasons for employee tardiness included oversleeping (32%), traffic (49%), and bad weather (26%). Some other reasons included procrastination and being too tired in the morning to make it to work on time. 

In an article by CareerBuilder, the results of this survey were compiled to include a list of the most outrageous reasons workers gave for their tardiness. Here are a few that made the list:

  • I forgot it wasn’t the weekend.
  • I put petroleum jelly in my eyes.
  • I had to watch a soccer game that was being played in Europe.
  • I thought Flag Day was a legal holiday.
  • My pet turtle needed to visit the exotic animal clinic.
  • The wind blew the deck off my house.
  • I overslept because my kids changed all the clocks in the house.
  • I was cornered by a moose.
  • My mother locked me in the closet.
  • The pizza I ordered was late being delivered, and I had to be home to accept/pay for it.
  • The sunrise was so beautiful I had to stop and take it in.
  • My mother-in-law wouldn’t stop talking.
  • My dad offered to make me a grilled cheese sandwich, and I couldn’t say no

Have you heard any of the excuses above, or something similar? If punctuality is a problem, the best advice is for the employee to avoid outlandish excuses and simply tell the truth and commit to doing better in the future.

What to Say When You’re Late to Work

No employer or interviewer wants to listen to excuses about tardiness. Often, a supervisor can tell when an alibi is genuine. If an employee is running late due to legitimate reasons like traffic, weather, or oversleeping, the best course of action is to communicate as soon as possible, giving colleagues the chance to expect a different time of arrival. A simple text message or call can make a world of difference when it comes to an employee’s reputation for punctuality. 

If an employee is running late or has been late and needs to make amends, here are some ways to communicate with a supervisor or interviewer: 

  • “I’m so sorry, but I will be 20 minutes late to the meeting. I ran into some unexpected traffic, but I’m on my way.” 
  • “I want to apologize for missing the first half of today’s staff meeting. I know that punctuality is important to the team and the company, and I will work to be on time in the future.” 
  • “My daughter has a stomach flu so I’m arranging a last-minute babysitter. However, I won’t be there until 11 a.m.”

If your workplace allows it, you could avoid being late to work in the first place by working from home. Just be sure to let your supervisor know ahead of time or as soon as you know you need the accommodation.

How to Avoid a Tardy Workforce 

If you’d like to make sure habitual tardiness does not happen in your workplace, it’s important to ask applicants about their history of punctuality during the hiring process. But to avoid the issue altogether, be sure you’re targeting the right type of employee — one with a strong work history and a proven punctuality track record. VICTIG helps you filter out applicants who might not be the right fit for your organization. Learn more about our employment screening services here, or contact VICTIG today to get started.

How Does Employment Drug and Alcohol Testing Work?

According to the Department of Labor, workplace drug use costs US employers $75 to $100 billion in lost revenue each year, which accounts for lost time, accidents, healthcare, and workers’ compensation costs. While drug screening practices are currently in flux in locations where marijuana has been legalized, most Fortune 500 companies still require their employee screening processes to include drug testing to look for cocaine, PCP, opiates, amphetamines, and marijuana (in some states), which could disqualify an applicant.

Drug testing in the workplace is a standard practice that virtually all applicants should expect to find in the hiring process of a company, so it’s important to have a clear understanding workplace drug testing to create company test policies that are comprehensive, effective, and compliant with federal and state laws and regulations.

Reasons for Workplace Drug Testing

So why do employers choose to perform drug and alcohol tests on prospective and current employees? The most common reasons for workplace drug testing are:

  1. To foster a safe and healthy work environment for employees and customers.
  2. To help the company benefit from Workers’ Compensation Premium Discount programs.
  3. To identify and disqualify candidates who use illegal drugs.
  4. To deter drug and/or alcohol abuse among the company’s current employees.
  5. To identify and appropriately refer current employees who have problems with drug and/or alcohol abuse.
  6. To comply with state and federal laws and regulations (i.e. the U.S. Department of Transportation’s rules for drug testing employees who fill certain safety-sensitive positions.)
  7. To promote employee and customer confidence in the company’s commitment to quality and safety

How the Drug Testing Process Works

Employers are generally required to obtain written consent from applicants before conducting a drug test. They should understand that their eligibility is contingent on the results of the test. Employers outsource the drug screening portion of the hiring process to specimen collection sites or drug testing vendors. Typically, the applicant is required to perform the testing within a couple of days of their application to narrow the window of time they can “get clean.”

Not long after the specimen (typically urine) is sent to the lab, the results become available. It takes even less time if the applicant is found to be drug-free. A positive test takes longer, because it must be re-verified before the employer and applicant are notified. The lab will keep samples of the positive test in case the findings are challenged.

How Drug Users Circumvent Drug Screenings

The process of background checks for most entry-level positions is a familiar process for those entering the job market, and drug users have found ways to get around the hurdle of requisite drug screenings. Periodic cocaine users can still pass a drug test 24 hours after using the illegal substance, and even chronic users only need a few days to test clean. A similar time frame holds true for heroin and PCP users. Marijuana, on the other hand, requires a longer detoxification period. These users often find alternative methods to giving up the substance.

In terms of urine samples, marijuana users sometimes attempt to alter their own sample by adding agents such as dish soap or bleach or submitting a synthetic sample. Drug users can also find legal substances at local general nutrition centers to flush their systems. Some users even go as far as borrowing urine from a clean person to pass off as their own. 

Most drug users find their way around screenings, whether they choose to detox or cheat the system. Therefore, as methods for beating drug screenings are growing, the need for firms like Victig that provide holistic options to job candidate dishonesty becomes crucial.

Circumstances That Merit a Drug Test

There are many occasions that could be written into an organization’s drug testing policies, which are listed below.

Pre-Employment Testing

Following an offer of employment, the applicant agrees to be tested, understanding that the offer will be withdrawn if the test proves positive. Because applicants can prepare for pre-employment testing by abstaining from drug use for several days, some employers perform additional unannounced tests on probationary employees, but some states restrict this practice.

Per the Americans with Disabilities Act (ADA), employers across the board are prohibited from performing pre-employment testing for alcohol use. With pre-employment testing, employers cannot be selective about the applicants they choose to test at this stage.

There are four types of pre-employment drug screening: 

  1. Urine test

The most traditional type of drug test uses the potential employee’s urine to screen for drugs and alcohol. Five-panel drug tests screen for: 

  • Marijuana
  • PCP
  • Cocaine
  • Opiates
  • Amphetamine

If an employer wants a more complete view of an individual’s drug usage, an in-depth 10-panel test can be performed. Alcohol passes through the system very quickly, which makes urine tests more effective for detecting drugs than alcohol.

  1. Blood test

A blood test is used primarily to check alcohol and drug levels at the time the test is completed. It is not as reliable as urine tests for long-term detection but is more effective in determining current levels of alcohol and drugs in the system.

  1. Hair follicle test

Hair testing is effective in detecting months worth of illicit drug use, such as marijuana, amphetamines, cocaine, heroin, and PCP.  When an employer needs a complete long-term picture of a potential employee’s drug use, a hair test may be justified. 

  1. Saliva test

Some employers may choose to perform a saliva test because it’s quick, easy, and provides deep insights. Saliva testing is mainly used to check for recent usage and pinpoint a specific substance. It is more effective in detecting specific drugs than urine, but drugs and alcohol do not remain in saliva as long as they do in urine. 

Testing Based on Reasonable Suspicion

Reasonable suspicion testing is performed when a supervisor has observed and documented the signs and symptoms of drug use in an employee. This type of testing is discretionary, so it’s crucial that the organization’s supervisor training program include clear and consistent definitions of the “signs and symptoms of drug use” to look out for and that their suspicions be corroborated by someone else in management. 

Post-Accident Testing

Objective criteria that are often used to justify a post-accident test on an employee include an incident that results in:

  • Fatalities
  • Injuries requiring off-site medical care
  • Property damage exceeding a specified dollar amount
  • Police citation

However, some employers choose to label this type of testing as “post-incident” to cover any event in which accident or injury could have occurred but was fortunately averted in order to rule out the presence of drugs and/or alcohol as a factor in the incident.

Random

This type of testing has no advance notice and is used as a deterrent for drug use. Subjects are drawn at random from an employee pool on a scientifically arbitrary basis to assure an equal chance for selection among all employees. 

Periodic

These tests occur uniformly across the employee base, usually on an annual basis and especially for positions that require regular physicals. Periodic tests can be planned for by abstaining from drug use for several days before the scheduled testing.

Return to Duty

Return-to-duty testing is for employees returning to work after an extended absence, usually because they tested positive in a previous drug test and have undergone the required treatment and rehabilitation process for substance abuse. Post-rehabilitation testing can also be periodic and unpredictable.

Blanket

Blanket testing is similar to random testing in that it is unannounced, and participants cannot prepare for passing a drug test by abstaining beforehand. However, instead of testing a random employee or selection of employees, all personnel are tested.

Other

Other types of drug testing that can be included in your drug-free workplace policy are voluntary, probationary, pre-promotion, and return-after-illness testing. These are all generally announced, allowing employees to anticipate and prepare for testing.

What Are the Federal Guidelines for Drug Testing and Who Must Follow Them?

Some federal agencies are overseen by the Substance Abuse and Mental Health Services Administration (SAMHSA) (which is part of the Department of Health and Human Services (DHHS)) and are subject to their guidelines. But because SAMHSA’s mandatory guidelines have been supported by court decisions even in the private sector, many private employers choose to follow them as a precautionary measure even though they are granted some latitude to implement policies of their own design. 

These federal guidelines include:

  • Having test results evaluated by a qualified Medical Review Officer (MRO)
  • Requiring the use of only SAMHSA-certified drug labs
  • Provisions for the five substances (or six, including alcohol) tested for in federal drug testing programs: Amphetamines (meth, speed, crank, ecstasy), THC (cannabinoids, marijuana, hash), cocaine (coke, crack), opiates (heroin, opium, codeine, morphine), phencyclidine (PCP, angel dust), and in some cases, alcohol (ethanol, ethyl alcohol, booze)
  • Following procedures to assure accuracy and validity in the testing process: chain of custody, initial screen, confirmation test, split sample

SAMHSA’s Testing Process Procedures and Visibility of Results

Observing the four procedures outlined by the SAMHSA will provide the necessary quality control measures to conduct drug testing within your organization with confidence.

  • Chain of Custody: This is a form that follows and documents the lifecycle of the sample from collection to disposal. This provides an unbroken link, in writing, between the specimen and the employee or applicant while the sample is being handled and stored at the collection site and the laboratory.
  • Initial Screen: This covers the sample’s first analysis, which cannot be considered wholly accurate or reliable on its own, since it’s possible for an initial screen to result in a false positive. A second confirmation test is always conducted on a positive result at this stage.
  • Confirmation Test: This second test is performed a little differently to provide added specificity and is considered highly accurate. Its intention is to rule out any false positives from the initial screen and is performed by gas chromatography/mass spectrometry (GC/MS). The confirmation test and the initial screen must agree in order for the test results as a whole to be considered positive.
  • Split Sample: At the time the sample is collected, it is split in two — one half for the initial screen, and the other for the confirmation test if the first returns positive.
  • MRO: Before the test results can be reported to the employer as positive, they must be reviewed by an MRO, or a licensed medical doctor with training in substance abuse. The MRO makes sure of the correct application of chain-of-custody and crosschecks with the employee or applicant to rule out the interference of certain doctor-prescribed medications, which can cause a positive result.
  • Restricted Access to Results: Employees and applicants generally must sign a release that allows the results of the drug and alcohol test to be viewed by the employer. Otherwise, the result of a drug test can be considered personal health information and protected under the Health Insurance Portability and Accountability Act (HIPAA). That being said, employers must handle such information with discretion, as with all sensitive materials, regardless of whether the employee or applicant has signed a release

Drug Testing Methods

The most common method of drug testing for the five illicit drugs listed in the SAMHSA guidelines is urinalysis, while breath testing is the most common for alcohol. Other types of bodily specimens can be collected for detecting specific types of drugs and usage, such as blood, hair, oral fluids, and sweat.

  • Urine: Shows the presence or absence of drug metabolites in urine. 
  • Breath: Measures how much alcohol is in the bloodstream (blood alcohol concentration or BAC).
  • Blood: Provides a more accurate measure of how much alcohol or drugs are actively present at the time the sample is collected. 
  • Hair: Provides evidence of usage history of a specific drug, not current impairment.
  • Oral fluids: Detects current use by collecting traces of drugs or alcohol in the mouth.
  • Sweat: Used mainly to maintain probation or parole compliance; signs of usage are collected with a skin patch and worn for a length of time

Drug Test FAQ

  • What other drugs can private employers test for apart from those listed by the SAMHSA?

There is an 8-panel test that includes SAMHSA’s listed substances plus Barbiturates (phenobarbital, butalbital, secobarbital, downers), Benzodiazepines (tranquilizers such as Valium, Librium, and Xanax), and Methaqualone (Quaaludes.) A 10-panel test includes all the above plus Methadone, used to treat heroin addiction, and Propoxyphene (Darvon compounds). Other substances that can be included in drug screening for employers are Hallucinogens, Inhalants, Anabolic steroids, Hydrocodone, and MDMA.

  • How long are certain substances detectable?
    • Alcohol: 1 oz. for 1.5 hours
    • Amphetamines: 48 hours
    • Barbiturates: 2–10 days
    • Benzodiazepines: 2–3 weeks
    • Cocaine: 2–10 days
    • Heroin Metabolite: less than 1 day
    • Morphine: 2–3 days
    • LSD: 8 hours
    • Marijuana: casual use, 3–4 days; chronic use, several weeks
    • Methamphetamine: 2–3 days
    • Methadone: 2–3 days
    • Phencyclidine (PCP): 1 week
  • Who pays for drug tests?

The employer. Additionally, under the Fair Labor Standards Act (FLSA), employees are generally paid for time spent undergoing required testing.

Starting a Drug-Testing Program

Though employers are not prohibited by any federal laws from testing employees and applicants for drug use, it is important to become familiar with state laws that prohibit or restrict random drug testing on employees who aren’t in safety-sensitive positions. The Americans with Disabilities Act (ADA) also has protections—in certain situations—for individuals with a history of substance abuse who are considered qualified with a disability.

While drug testing is an important component of a drug-free workplace program, it’s also important to have provisions for clearly outlining your expectations regarding drug use and for uniform supervisor training on detecting signs of use and enforcing policies. It is also advisable to seek legal consultation for an existing program or before starting a new one, which will help you confidently create a comprehensive drug-free workplace program to protect your company, your employees, the people you serve, and ultimately, your community.

How FBI Background Checks Are Flawed

When it comes to employment background checks, many believe that FBI criminal background checks are the gold standard and the best quality. However, data reveals that the FBI employment background check is seriously flawed. This can be bad news for employers that trust and count on the FBI to do a thorough job. Check out below to learn more.

How FBI Criminal Records Work

Criminal records are handled at the county level. When an individual is arrested, pulled over, or merely detained, that information is communicated to and processed by the appropriate county court. In some cases the individual is fingerprinted—but not in all cases.

Unfortunately, many states do not have appropriate software infrastructure that communicates information from all county courts within the state. Most do not have statewide repositories consisting of all criminal records handled within the state. Only 5.5% of U.S. states report the outcome of an arrest at least 90% to 100% of the time.

With one-third of felony arrests not resulting in a conviction, many employers viewing arrest records with no final disposition are left in muddy compliance water. Even records that have been expunged or sealed can show up as an arrest only—with no additional information. An FBI search works differently. The FBI does not dig deeper or search other databases to help supplement incomplete information. They rely solely on the state.

The Reality of FBI Background Checks

Most Americans think an FBI background check involves something like a private detective doing field work to find out every little detail about a person, with nothing slipping through the cracks. However, FBI background checks almost exclusively involve office work, with FBI employees basing their background check results solely on information found via the internet. In reality, the FBI has access to as much information or less than most criminal background check companies. 

FBI Criminal Records Process

The purpose of an FBI background check is primarily to disclose a job applicant’s criminal history. The results of an FBI background check will often include all public federal misdemeanor convictions and felony convictions. So what does an FBI background check consist of? The background check will show basic information about the charge on an applicant’s record, as well as information about the conviction and any resulting prison or jail time. 

criminal background check

Does an FBI Background Check Show?

Are you wondering what shows up on an FBI criminal background check, or if arrests show up on a background check? An FBI background check typically shows the following information

  • Criminal charges, convictions, and incarceration
  • Bankruptcies 
  • Outstanding warrants 
  • Arrests that did not result in convictions (these remain on record for seven years)
  • Addresses and phone numbers used on tax forms

However, the information above could be flawed or misleading. The vast majority of arrests are public record, so they may show up on a background check. Some states may restrict access to certain arrest information, and others may destroy or omit information if the subject in the case is found not guilty or if the claim is dismissed. It’s important to understand that just because the charge is on an applicant’s record, it may not be the same as a conviction. But that fact can be lost when an employer sees the “red flag” of an arrest on an FBI background check. Some states restrict interviewers from asking applicants about arrests because of this reason. 

The following arrests may show up on FBI background checks:

  • Pending case: The individual has been arrested and criminally charged, and the case is currently developing. 
  • Arrest/non-conviction: The individual was arrested and charged, but found to be not guilty. In this case, charges may have also been dropped.
  • Arrest record/conviction: The individual was arrested, charged, and found guilty.

While this information can certainly be relevant for an employment background check, the data is not always timely or completely accurate. An arrest without a conviction may show up on an FBI background check, putting the job applicant’s reputation at risk even if it was a mistaken arrest or something that has been resolved within the seven-year time limit. Some of the information above, such as criminal charges or convictions, might not show the final court disposition, leading the employer with no choice but to think that the job applicant was found to be guilty or at-fault in court—even if they were found to be innocent.

rejected applicant

Reasons Expungements Show Up On FBI Background Checks

When a charge is expunged from your record, it means it is modified, sealed, or destroyed completely by law enforcement. Once a charge is expunged, it should not be visible to anyone in the public who accesses the record. However, even when something is expunged, it could still be visible on a background check submitted by an employer. 

An expunged charge might still be visible on an applicant’s background check in the following cases:

  • The court did not inform the public that the charge was expunged
  • The expungement order was not received by background check agencies
  • The expungement order was only received by some background check agencies

An applicant may be frustrated by having an expunged charge still visible on their background check, as expungement usually means that the applicant does not need to disclose the charge to employers. In many cases, the candidate can dispute the results of a background check within 30 days. They can also provide your organization with information about the expunged charge.

Flaws Concerning FBI Search Results

The Justice Department admits that almost 50% of their background check records are incomplete and do not contain the final outcome of a case. The National Employment Law Project estimates that 1.8 million workers a year are subject to FBI background checks that include faulty or incomplete info, resulting in 600,000 workers being hurt by the misinformation that keeps them from employment.

Most of the time, the FBI search is relying on records of individuals who have been fingerprinted. Yet, many crimes in numerous states get processed without fingerprints. By relying on a fingerprint search, you miss out on all records not fingerprinted.

The Right Way to do a Background Check

Instead of relying on the FBI, more accurate searches can be done using personal identifiers (name, DOB, SSN) at the correct source. A good background check should also look into:

  • Local searches: These should be done at the county level and only at the state level if the state has a true statewide repository.
  • Driving Records: In some states DUI’s are a driving record, not a criminal record.
  • Nationwide criminal database: These searches are an inexpensive way of casting a net over the country to potentially find records in areas that the candidate has not lived in. Typically, this search also includes a nationwide sex offender registry search

The background check organization should also do other additional searches, like past employment verification, education verification, drug tests, and more.

Do a Background Check the Right Way Through VICTIG

To properly perform a background check on a job applicant—without the mistakes and flaws that come with the FBI’s system—it’s important to go through a background screening organization that has access to national databases. VICTIG is an employment screening solutions company that provides timely, accurate, and affordable background checks for employers in various industries across the country. 

If you need pre-employment criminal background screening or tenant screenings, VIGTIG can do it all for you. Our checks easily provide accurate information quickly and for a lower cost than competitors. Contact VICTIG today to find out more about our background screening solutions and how they can help ensure the safety and security of your organization. Don’t neglect to uncover the vital background you need to make a fully informed next hire.

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How Long Should a Quality Employment Background Check Take?

The profitability of a business depends heavily on the productivity of its people. Every moment affects the bottom line, so it’s tempting to take the fast route in the hiring process. When it comes to employment background checks, however, a speedy screening is a disservice to your organization — especially when screening candidates for high-responsibility job positions. Compromising quality background checks for speed may cause you to miss valuable insights and hire a poor organizational fit who may even cause liabilities for your company.

So how long should you expect a quality employment background check to take?

The Purpose of a Background Check

According to a CareerBuilder survey, 72% of all employers in the U.S. conduct formal background checks on their candidates, which means that 28% of employers still do not. Background checks are an effective safeguard for the employer and their company. As a critical part of the hiring process, the employment background check is intended to:

  • Ensure workplace safety
  • Mitigate liability
  • Protect company reputation
  • Determine professional eligibility
  • Verify candidate claims of experience and qualificatio

The Average Timeframe for a Background Check

Determining these parameters for any given candidate requires a number of different types of checks. The length of time a background check will take depends on:

  • Which checks are conducted
  • The thoroughness of each check
  • Whether or not any concerns arise
  • Industry guideline

An employment background check, for example, for a government job that will grant a level of security clearance can take as long as a year. Meanwhile, the standard check for a basic office job may take as little as 24 business hours or as many as five business days. 

If the employer is using a third-party background check provider (and all should), a portion of this time frame is outside of their control. Background check providers or services that tout an “instant” turnaround time are generally pulling from incomplete or inaccurate databases; you should always opt for thoroughness over speediness.

Factors That Impact a Background Check Timeline

  • Credit checks: The Fair Credit Reporting Act (FCRA) requires that job applicants give written consent for their personal records to be pulled. Delays commonly happen when employers fail to acquire or delay conveying this signed authorization.
  • Educational/employment verifications: It also takes time to conduct verifications and personally contact applicable persons at prior schools and places of employment to receive the requested information.
  • Cross-checking records: Name confusion can be a setback with background checks, as name variations require agencies to cross-check information to make sure they have the right person. It’s crucial to complete this step, as mistaken identities have caused problems for all involved parties in the past and leave the employer and agency vulnerable to litigation

What’s Included in a Thorough Background Check?

Many employers use a third-party employment background check provider to conduct the different types of checks that make up the background check as a whole. A good deal of companies also divide the process of checking a candidate’s qualifications between a third-party provider and an in-house HR team. What are these checks and how does each one contribute to the potential length of the employment background check?

A thorough employment background check is one that deploys most or all of the following types of in-depth checks:

  1. Social Security Trace 
  2. Criminal Database 
  3. Sex Offender Registries 
  4. DMV Records 
  5. Drug Tests 
  6. Credit Score 
  7. Employment and Education History 
  8. Licensing and Certifications 
  9. Social Media

CareerBuilder reports that of the 72% of employers conducting background checks on candidates: 

  • 82% check the candidate’s criminal background
  • 62% manually confirm employment history
  • 60% specifically confirm candidate identity
  • 50% confirm education history and degrees attained
  • 44% check for illegal drug use
  • 38% confirm licensing where applicable
  • Only 29% actually review a candidate’s credit history.

Some employers don’t check all of these aspects and may choose to forgo the credit history or driving record check, for example, because they aren’t relevant to the job. In this case, the background check overall is still a thorough and reliable measure of the candidate’s ability to successfully meet the demands of a position.

Social Security Trace

Social Security traces are the tip of the spear when it comes to professional employee background checks. Social Security is typically the first thing an employer investigates, as a candidate’s Social Security number (SSN) reveals activities the candidate has been involved in, such as rental agreements, car loans, and other background checks. All of these activities are recorded under the SSN, giving the employer insight into where the candidate has lived, where they’ve previously worked, whether or not the SSN is attached to other aliases (such as former surnames), and if the SSN appears in criminal databases.

The turnaround time for a Social Security trace is immediate, and if there are no issues with the returned information, this step can be resolved quickly. If the candidate has had SSN issues before, further verification will be needed to find out if the person’s identity was ever stolen, if the SSN was connected to suspicious activity, and whether the candidate was honest about these from the beginning. These factors will help you determine the eligibility of a candidate.

Criminal Database

The majority (82%) of employers who reported conducting background checks in the aforementioned CareerBuilder survey focused heavily on criminal activity. While “ban-the-box” initiatives across the country seek to ensure the unbiased employability of individuals with criminal histories, there remain certain industries, such as childcare, home care, and caretaking of the elderly in which employers must be especially careful in their hires to protect clientele.

This second step in the background check process includes investigating sex offender registries and this step can be expected to take at least a day. It requires thoroughness and is too often the step in which critical information slips through the cracks because there is no single, catch-all criminal database that is complete or totally accurate.

Verifiers must comb through multiple local, national, and international databases (such as global watch lists, on occasion) to paint a complete picture of a candidate’s criminal history if one exists. Knowing where a candidate has lived is important to criminal searches in each locality. Not every database is automated, so retrieval requests must be processed through a human courthouse clerk. This can affect your turnaround time, but not as much as finding a red flag, which will require further investigation.

DMV Records and Drug Tests

Though this step typically takes up to three business days, employers want to know that their potential employees are trustworthy. If the job description involves piloting a vehicle, DMV records will reveal if the candidate has a history of DUIs, license suspensions, reckless endangerment, or even speeding tickets. This added step is further verification that the candidate is who they say they are.

Drug tests are often outsourced and have a prompt turnaround. These are especially important for high-risk positions in which the employee will be handling heavy machinery or operating vehicles.

Credit Score

Credit checks take only a few minutes, and the rules for conduct varies by state. Each state, however, must abide by the FCRA, which dictates that the candidate must provide written authorization for the check to be run and given the opportunity to contest or correct negative results.

Determining employment eligibility based on credit scores can be a controversial practice in some industries, but many employers do it as a precautionary measure if the job description grants access to large sums of money or highly sensitive materials and information, for example. Does the candidate have a gambling problem? Have they been bankrupt? Do they have a history of exorbitant debt and missed payments? Fraud and embezzlement charges may turn up on criminal records, but credit scores can sometimes provide valuable indicators of potentially risky behavior before it can occur at your organization.

Employment and Education History

Of the employers who reported making a bad hire in the CareerBuilder survey, at least 49% claimed that the new hire’s skills were misrepresented at the time of screening, a fact only discovered post-hire. Six years ago, a report indicated that 66% of employers surveyed had caught some form of falsehood on applicant resumes and applications. That’s up to 85% as of 2017.

With these statistics in mind, it’s clear to see why employers should take the time to verify employment, education history, licensure, and certification that the applicant claims to have attained. The length of time this step will take depends on the processes used and how quickly former supervisors, references, and academic offices can provide the necessary information. As long as no discrepancies are found, this type of check only takes one to three days.

Social Media

If you’ve ever done “online research” on a potential love interest, you know the value someone’s digital footprint can offer. It’s no different for employers, who use social media profiles to spot unsavory or dangerous traits in a prospective hire. The red flags employers look for include:

  • References to drug and alcohol abuse
  • Derogatory hate speech or harassment
  • Signs of bullying, discrimination, or violence
  • Poor grammar, spelling, or communication skills
  • Qualifications that do not match the applicant’s resume
  • Inappropriate photos or other sexually explicit materials
  • Revealing confidential information or unseemly talk about past places of work, coworkers, and/or customer

While social media checks may be considered an informal part of the screening process for now, it’s an increasingly common practice and should take only as long as your standard Google search.

Speed Up Background Checks With VICTIG Solutions

Thorough background checks require time, but there are technological solutions to speed up verification processes. VICTIG’s verification hotline sidesteps the time-wasting yet common “phone tag” problem by allowing contacts to call a hotline at their convenience rather than coordinate with the personal schedule of agency employees. Call us at (866) 933-1658 to learn more or get started.

How to Reduce Turnover by Using Good Background Checks

Job seekers are becoming increasingly desperate for employment in today’s teetering economy. Unfortunately, that means they’re more likely than ever to skew the truth on their resumes, applications, and cover letters. Thus, background checks are a crucial part of the verification process and should include a thorough investigation of all of a candidate’s claims. The screening process can reveal important issues such as instances of:

  • Workplace violence
  • Identity theft
  • Fraud and misrepresentation
  • Breaches of confidentiality agreements
  • Criminal offenses
  • Sexual misconduct/sex offender registration status
  • Poor credit history

Reducing liability for your organization is not the only reason to invest in employee screening and background checks, though; careful candidate screenings can also shrink costly and inefficient turnover rates.

The Cost of High Turnover Rates

Statistics show that when it is necessary to replace an entry-level employee, you’ll spend up to 50% of that employee’s yearly pay to do so. For a mid- to professional-level employee, it could cost you anywhere from 150% to 400% of their annual salary to replace them. Retraining new employees repeatedly is not only a strain on company resources, but it also hinders operations in the meantime.

In industries with high turnover rates, such as retail, software, IT, media, professional services, government, education, and nonprofit services, more than 11% of employees will leave their employment in an average year. Pre-employment screenings are critical in high-turnover industries such as these. Based on the above figures, a company within an industry that loses between 10% and 15% of its employees annually in a 10-person operation, for example, is essentially paying for up to 12 employees while getting less than 10 peoples’ worth of work.

If you’re wondering where turnaround expenses are coming from, here’s a breakdown of turnover-associated costs from the founder of Bersin by Deloitte, as explained on LinkedIn:

  • The costs of advertising, interviewing, screening, and hiring the individual
  • The costs of onboarding in management and training hours
  • The productive time it costs to get a new hire to the same productivity level of an established employee
  • The cost of errors made while still in training
  • The loss of good employees as a result of a bad hir

Solid retention rates represent a wealth of savings that are estimated to be more than double the salary for the position in question, which is what you’ll pay to scout, vet, and secure a new hire for the vacated position. Higher workplace retention reduces time waste and promotes a healthy and motivated team that will grow and work hard in the long term. Clearly, a good hire is a win for your company’s overall infrastructural, economical, and procedural efficiency.

Types of Background Checks to Conduct in the Hiring Process

Typical background checks you should run on entry-level employees include:

  • Verification of employee identity
  • A local, state, federal criminal background check
  • A motor vehicle record check
  • A credit check

For higher-level employees, your background check should also include any of the relevant options below:

  • Employee education check
  • Past employment check
  • Professional references
  • Relevant licenses
  • Professional certification

Why Conduct Background Checks Before Hiring?

Good Background Checks Help With Employee Retention

Protect Office Morale and Camaraderie 

Did you know that many employees stay at a job long-term because of the friendships they have established with fellow coworkers rather than the company’s benefits or pay rates? Employees of today value relationships with their coworkers, and hiring the wrong person could disrupt this camaraderie and positive morale — especially if the new hire begins to slack off and create more work for others or causes coworkers to fear for their safety.

Such situations can cause good employees to leave the company, and in turn, increase turnover rates. If your company is exploring how to retain employees, background checks are the ideal place to start. Background checks provide peace of mind, by helping HR and management avoid hiring dangerous felons or those who have demonstrated performance issues in past positions.

 

Reduce Risk of Damage, Harm, and Fines

A background check can alert you to an individual’s criminal offenses that could happen again on your premises and threaten the reputation of your company or the safety of your staff members. You could also incur fines or legal liabilities if you inadvertently hire someone whose bad credit poses a financial risk to the company or who lacks the proper documentation to work in the United States. Mitigate your financial risk and hire someone who can be trusted to work for the long haul by conducting a thorough employee screening before hiring.

 

Increase Quality of Hires

If you make it known that all candidates will be screened during the application process, you will weed out many of the less-favorable candidates who won’t apply if they know they will be exposed for providing false information. This leaves you with a smaller and more qualified applicant pool.

From there, you can look at a candidate’s education and experience in their background check to identify which people’s qualifications are the best fit for the position in question. When you know a candidate’s full background, you’ll have a good idea of how they are going to perform at work. With this information, you can proceed to make more informed hiring decisions and onboard higher-quality candidates who will stick around longer and help your business succeed.

Good background checks allow you to:

  • Become aware of a candidate’s lack of qualifications, education, or training before a hiring decision is made
  • Learn about the candidate’s past history with employers, including their termination history
  • Learn positive things about the candidate that will increase the chances of retention
  • Circumvent instances of workplace fraud, theft, and violenc

All good employers know that if they can find and keep the right person for a position on the first attempt, the expense of onboarding that individual was money well spent.

Good Background Checks Help Companies Perform Better

Background checks are now common practice — more than just another check mark on the hiring to-do list. According to a 2016 study by Aptitude Research Partners, companies are using background checks to increase the quality of their hires and their candidate experience. They reported that the background checks helped them pinpoint the people who would help the company perform and grow. Checks also contributed to a more consistent and enjoyable application process that helps them attract and retain top talent. The study provided a finding that says companies who track the candidate experience and quality of their hires are 26% more likely to have a background screening program and are likely to experience benefits like better hiring compliance, risk mitigation, and improved workplace safety.

Studies show that companies utilizing good background checks are among the 93% of top-performing companies due to higher employee engagement; they’re twice as likely to make efforts to achieve diversity and three times less likely to lose employees to other companies offering equal pay. Also, 78% of the companies using candidate screening have better communication skills on their hiring teams than the 22% that don’t screen candidates. Organizations that follow suit and invest in candidate screening may see similar results.

Invest in Reliable Employee Screening Today

Background checks will reduce your overhead, promote overall workplace security, and incentivize the productivity of your workers. Start making smart hiring choices today by investing in solid employee screening practices. VICTIG is the place to start. We’re not just any background-checking company; we have a strong history of creating progressive screening solutions that solve problems, reduce turnaround times, and save you money.

Stop paying too much and waiting too long for background screening — request a free account and find out if VICTIG works for you today. You will see drastically reduced turnover while retaining the best of your organization.