FCRA Compliance: What Employers Need to Know Before Running Background Checks

As an employer relying on a third party to run background checks on job candidates or existing employees, you must follow the federal Fair Credit Reporting Act (FCRA). Your responsibilities are detailed in the document entitled “Notice to Users of Consumer Reports: Obligations of Users under the FCRA.” Below is a breakdown of your essential duties under the Act. If you have any questions, consult qualified counsel.
 

FCRA Compliance Basics in 5 Steps

1. Permissible Purpose - Ensure you are only ordering background checks for employment purposes. "Employment" is a broad category that includes hiring, retention, promotion, transfers, and can include volunteers, contractors, etc. In the case of a Medical Staffing department, for example, this can include appointment or reappointment of physicians.
 

2. Disclosure - In a written document, inform the consumer that a background check may be obtained as a condition of employment. The disclosure can't be combined with any other form except the authorization.
 

3. Authorization - Before ordering a background check, obtain written consent from the individual that a consumer report can be obtained now and throughout the term of employment.
 

4. Certifications - As the "end user" of consumer reports, you must certify the following to the screening firm:

• You will only obtain background checks for permissible purpose (employment).
• You will make clear disclosures to and obtain consent from consumers before ordering reports.
• You will not use the consumer report in violation of any federal or state equal opportunity laws.
• If you make a negative employment decision based on information on the report, you will properly follow adverse action procedures, as outlined below.
  
   

5. Adverse Action - If adverse information on a report is used by you to make a negative employment decision, you must take the following actions before rescinding an offer of employment or terminating an employee. Remember, taking adverse action involves a two-prong notification process:

• In a written, oral, or electronic pre-adverse notice, inform the consumer of:
  - The name, address, and telephone number of the background screening company that assembled the report.
  - The fact that the background screening firm did not make the adverse decision and cannot explain why the decision was made.
  - His/her right to a free file disclosure if a request is made to the screening firm within 60 days.
  - His/her right to contact the screening company directly to dispute inaccurate or incomplete information on the report.
• Once the pre-adverse notice is sent, allow the consumer 5 days to contact the screening company to dispute the report. After 5 days, if you do not hear from the consumer or the background check provider, proceed with your final employment decision.
• However, if the consumer disputes information on the report, the screening firm will perform a reinvestigation that must be completed within 30 days and at not cost to the consumer. The screening company must update you and the consumer of the reinvestigation results.
• If and when making a final adverse decision, you must send the consumer a final adverse notice.
   

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Criminal Searches Uncovered, Part 1

At PreCheck, we’re often asked about criminal record searches whether it be how they are obtained, what coverage they offer the clients we work with day in and day out, and other burning questions.  Our clients aren’t alone; we know the world of criminal records can be a confusing one!  Today (and as part of an ongoing series) we hope to set the record straight and shed some light on this mystical topic by sharing a few basics regarding criminal record searches.  Other related topics coming up in this series will be fingerprinting, as well as the threats that currently exist to criminal record reporting.

Types of Criminal Searches

Criminal record searches come in a wide variety of type and scope. The most often requested searches for the purpose of this blog are County level, State level, National and Federal searches. It should be noted that in the healthcare industry the terminology "primary source" holds great importance especially in light of certain accreditation programs. Primary source speaks to the original source of information, and when considering criminal records, the primary source is in most case the County level record. The charge and documentation often begins within the County Courthouse, and consequently, contains a high level of detail.

Statewide searches are sometimes utilized to supplement County level searches, or in some areas a Statewide search might be known to be an equally detailed search in comparison with the Counties within that state. It is important to understand that there is no enforcement mechanism for ensuring how often a county shares their criminal record information (and any updates after their original filing) with their home state. This also holds true for what details are shared, as a record located at a County Courthouse can have more detail than what is shared with their state.

National searches (aka National Criminal Database Searches) are a term used that can be exceptionally confusing. For the record, there is no single database that reflects real-time up to date county level information for all counties across the country. Not even the FBI's database offers this. In a 2006 report from the Attorney General regarding criminal history background checks, it was stated that the FBI's repository known as the Interstate Identification Index (III or "Triple I") system, although quite comprehensive, was "missing final disposition information for approximately 50 percent of its records." Acknowledging this statement, it stands to reason that research would still be required at a primary source or County level to confirm current status of records located without disposition to ensure reportability under the Fair Credit Reporting Act. This is not to discredit the value of the National Crime Information Center (NCIC) or the III. The NCIC is a great tool for those who have access to it, and for our clients who have access to the NCIC database, we recommend a blended approach of using County level searches along with the NCIC.

Federal criminal searches are performed at the Federal Court level. They are often utilized on background checks for candidates being considered for executive level positions, those who may handle sensitive data or financial information. Criminal records filed at federal district courts will not be found if only county or statewide searches are conducted.

Methods of Performing Criminal Searches

Not only are there many types of searches, but how they are performed can vary as well. County level criminal searches may be performed at public access terminals provided right inside the courthouse, or may require a search request being provided directly to a court clerk. Some Counties will offer online searches of their system. At a minimum, searches are conducted by name and date of birth to establish a match. Common names would require additional unique identifiers to confirm a record match. Due to privacy concerns, most criminal records do not have a social security number associated with them, so searching by SSN is not an option.

Statewide searches are performed online through a website provided by the state, or if required by a particular statute, there may be a specific process for how someone approved with access submit their inquiry for a statewide search.

National criminal database searches are often done online through a site hosted by the data aggregator.

Federal court searches may be performed by using a public access website service provided by the United States Judiciary. Searching can be done in a limited number of ways, including case number and name. Federal court records are not searchable by SSN, however, which can create quite a challenge when searching a common name. Imagine how many possible matches one might find for "John Smith."

How Long does a Criminal Record Search Take?

One of the more popular questions received in our industry concerns how long it will take to complete a criminal search. So, what's the answer? I know our readers are on the edge of their seats... You know the joke where when asked to choose between two things someone simply responds with "Yes?" Criminal search turnaround time is a lot like that punch line—confusing, unclear, and in most cases, not funny.

Full disclosure is important, however, and it's in that vein that we must tell you it really can vary across jurisdictions. Why? A number of reasons contribute to turnaround time. Accessibility of the information, for example—is it readily available to the public at a terminal onsite at the courthouse or via a website hosted online by the court? Does the court require search requests to be submitted in person? And are you "at the mercy of the court" and must simply wait indefinitely for the clerk to conduct the search him or herself? If the search is made or performed in person on site at a courthouse, is that courthouse open five days a week? Be aware, streamlined budgets and furloughs are a reality that many states and counties face and, in turn, can impact how quickly a result can be received.

Another factor to consider that will impact turnaround time would be the potential research required to confirm or rule out a possible match. In discussing the methods for performing searches you'll recall the point made that not all records contain a SSN, one of the identifiers thought to be most unique to an individual outside of fingerprints. When the only search filter criteria are Name and Date of Birth, and you receive multiple possible matches, additional work is required to ensure that you have an accurate record information. That work involves trying to locate additional identifiers to positively confirm or clear a record. When identifiers are limited, a public records investigator must be resourceful in order to uncover relevant information necessary to resolve a search.

These are some of the most common contributing factors to turnaround time, and the good news is that one can see instant or same day results in those places where access is provided to the public by website or terminal. The bad news is that one can also experience longer wait times for results certain areas of the country (greetings to our San Luis Obispo, CA readers!). If there's ever a particular area that you're curious about, give us a call and we'll be happy to advise on expected turnaround time.

I hope you've enjoyed this first installment of our Criminal Searches blog series. For our more advanced readers who are already familiar with the Criminal Records Search basics just covered, I do hope you'll come back as we cover other topics.

Photo credit, Lisa Padilla.

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Why Employers Should be Concerned About Diploma Mills

As the job market remains competitive, PreCheck has noticed an upswing in our detection and reporting of diploma mills as we conduct education verifications for our clients. There is no indication this trend will decrease. So what does this mean for employers?

What's a Diploma Mill?

A diploma mill is a fraudulent education institution that primarily markets its programs online and awards degrees or certifications for a fee when little or no work is actually performed to earn that degree. Essentially, the degree awarded by a diploma mill offers no value to an employer. To the purchaser, it provides the appearance of educational achievement.

The Federal Trade Commission, the federal agency that focuses on preventing consumer fraud, issued a consumer alert on diploma mills back in 2006 entitled "Diploma Mills: Degrees of Deception." The alert identifies a diploma mill as "a company that offers 'degrees' or certificates for a flat fee, requires little coursework, if any, and awards degrees based solely on life experience."

Diploma Mills' Impact to Employers

If undetected by the employer or the background screening firm performing the education verification, the fake degree can potentially result in harm to others if the job requires technical knowledge and training that the applicant does not actually possess. Additionally, an undetected diploma mill can eventually be the cause of embarrassment for an employer if the public, the media, a client, or a regulatory agency learns that an employee or company official does not possess a degree from an accredited education institution. There is certainly an expectation that this information is adequately verified when an applicant becomes an employee. Employers performing their own education verification or relying on a screening firm to conduct primary source verification need to be vigilant and be aware of the pervasiveness of these bogus institutions.

The Tell Tale Signs of a Diploma Mill

The common denominators to identify a diploma mill include:

• The ability to earn or be awarded a degree, diploma, or certificate when little or no work is performed. Degrees awarded for "life experience."
• The ability to earn a degree in a matter of days or a few weeks
• A degree guaranteed for a flat fee
• School's lack of accreditation by an accrediting agency or association that is recognized as an accrediting agency or association of institutions of higher education
• Verification of the accrediting body may reveal that it is connected to the institution itself
• A very standard website that closely resembles other online degree program websites
• An institution bearing a name very close to the name of a legitimate and widely known institution (Clemson College vs. Clemson University in SC, Columbia State University vs. Columbia University in NY, Dartmouth University vs. Dartmouth College in NH)

What Employers Need to Do When They Discover a Diploma Mill

It is essential that employers have an actual policy in place that defines consistent and appropriate actions when they learn an applicant or employee received a degree or certificate from a diploma mill. Among other points, an employer's policy should consider:

• Explicitly defining its position as it relates to the acceptance/rejection of degrees awarded from a diploma mill
• Defining what constitutes acceptable degrees (i.e. must be awarded by an institution accredited by an agency recognized by the US Department of Education, institution must not be named on listings of known diploma mills, etc.)
• Any exceptions when a diploma mill-issued certification/degree is not relevant to or a requirement of the actual position

In addition to establishing an internal HR policy, the employer should inform applicants and employees that it will not recognize degrees, diplomas, or certifications awarded from diploma mills. In drafting and posting job requirements, employers should specify that in order to meet the education requirements for positions, applicants must attain those degrees or certifications from institutions accredited by an agency recognized by the US Department of Education and that the institution must not be named on listings of known diploma mills.

Employers are advised to consult with qualified counsel to draft an appropriate policy.

Photo credit, .:[ Melissa ]:.

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Hospitals May Be Running the Right Kinds of Employment Background Checks, but What About the Staffing Firms They Use?

The recent case of David Kwiatkowski, the traveling radiologic technologist who exposed countless patients to Hepatitis C, shines a spotlight on healthcare employment screening practices in general and those of healthcare staffing firms in particular.  Kwiatkowski allegedly stole Fentanyl, a powerful synthetic opiate used as a post-surgery anesthetic, and replaced the syringes with saline where those needles were then used on patients, infecting them with Hepatitis C.  Working for numerous healthcare staffing companies, this serial infector moved from state to state, harming innocent patients along the way.  Kwiatkowski is believed to have infected over 30 patients at Exeter Hospital in New Hampshire until he was apprehended by authorities in July 2012. 

At the heart of the tragedy is how Kwiatkowski managed to move effortlessly between states, staffing companies, and hospitals when he in fact has a history of substance abuse and drug diversion.  Most disturbing is that some previous employers terminated him for these very reasons, and yet he was able to quickly hop on a plane and head to his next hospital stint. Prior to working at Exeter, Kwiatkowski worked in Arizona, Pennsylvania, Kansas and Georgia.  It was while he was employed in Arizona that Kwiatkowski was fired for diverting Fentanyl. The Exeter outbreak that came to light only leads to more speculation about the extent of the damage he has wreaked.

Now that screening practices such as license verification and employment reference checking are being called into question, both the staffing companies that hired Kwiatkowski and the hospitals where he was placed are deflecting blame.  Finger-pointing aside, this case forces healthcare employers and staffing firms alike to examine and fortify their own practices. 

A hospital utilizing a staffing partner cannot afford to operate under assumptions.  Before signing an agreement with a staffing provider, the hospital must lay out the terms of the background screening requirements.  The individuals being placed by staffing firms are technically the employees of the staffing firm, not the hospital where they will be placed. However, patients, patients’ families, and the community at large do not distinguish between a hospital employee and a staffing firm employee. If a health provider’s name makes it in the news because of a patient violation, the community and public at large associate the crime with the hospital, not the staffing firm.  Hospitals need to ensure they know who is working with their patients and colleagues. 

So, how can healthcare employers and their staffing partners work together to ensure only the right types of individuals are being assigned?

• Hospitals should require more than a general attestation or a single clause in a contract requiring a staffing firm to vaguely "run background checks on their employees."
   
• The Hospital should outline in a contractual agreement the specifics of the types of screening the staffing firm is required to run on candidates it will place. In general, the staffing background check should mirror that which the hospital runs on its own employees.
   
• At minimum, the details should include the various search types and components (e.g. primary source professional license verification, education verification, previous employment verification, sanctions and exclusion screening, criminal records search, sex offender registry search, etc.), how far back searches need to be conducted, inclusion of maiden/alias name searches, search sources, etc.
   
• The hospital is also in a position to specify which approved background screening company or companies must or should be used.
   
• A decision must be made about who will be viewing the actual background check results. If the hospital will be gaining access to these consumer reports, the language in the consumer report authorization form should reflect this permission granted by the subject of the report.
   
• The two parties should agree on who will be reviewing and make decisions about any negative information that comes back on a report.
   
• And in advance of that discussion, there needs to be an understanding and agreement on what constitutes negative information. Will the staffing firm be interpreting the healthcare employer's hiring standards? Will that standard be specific enough and include details about what results are disqualifications for which positions?
   
• Both parties need to understand their duties under the Fair Credit Reporting Act and pay particular attention to properly carrying out their adverse action responsibilities.

Hospitals rely on the services of their staffing partners to deliver safe and effective healthcare to patients. They need qualified and experienced healthcare professionals who can fill a position quickly. Unfortunately, it's the need for speed that is sometimes directly responsible for shortcuts and oversights, like the ones that led to the repeated hiring of David Kwiatkowski. Healthcare employers must work effectively with their staffing partners to fully understand and approve of the screening that occurs prior to any candidates being placed in their facility.

Photo credit, Frenkieb.

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