What Families Need to Know About Background Checks

When a family or agency asks about background checks, they are typically thinking about checking an individual’s criminal history and perhaps verifying their previous employment.

At a minimum, those two items should be included in any diligent background investigation.

However, depending on the role the individual may play in the family’s life, the family’s reputational and security concerns, and a host of other issues, more thorough due diligence is often appropriate.

Detecting Identity Fraud

Employment candidates may lie about their identity for a number of reasons.

They may be trying to hide their criminal history.

They may not be eligible to work legally in the US.

They may be professional scammers, seeking to take advantage of the family and then disappear.

Whatever the reason, if background research is conducted using false identity information, the outcome of the research will be flawed.

Therefore, the foundational step in any background investigation is the process of corroborating or verifying the identity of the individual.

Typically, this involves corroborating that the name, date of birth, Social Security number, and address provided by the individual match those in consumer reference files—consumer information collected by credit bureaus and other sources (“big data”).

Along with identifying the name variations associated with the provided SSN, this information is also useful in identifying addresses previously associated with the SSN. Again, this information comes from a variety of sources reflecting information provided during consumer transactions ranging from credit transactions to change of address notifications.

This address information is key to identifying jurisdictions closely associated with the individual, thus focusing research efforts.

While many screening companies call this an “SSN Verification”, it is not an actual verification that those data items match the government’s records. For that reason, we simply call it “Identity Research.”

In fact, we often see individuals who have built somewhat credible credit histories using fabricated identity information—it is rare but it can happen.

In most cases, corroborating the information is sufficient to conduct the background investigation—especially when paired with a review of the individual’s identity documents when completing the Form I-9 upon hire.

In some cases, the information provided by the individual cannot be corroborated so easily.

Perhaps the name and SSN don’t match the information in the consumer reference files. Or there are scant or no records in the files.

This most often happens with young adults or recent immigrants who have little or no credit history.

Sometimes, clerical errors or outright identity fraud leads to multiple names being associated with an SSN in consumer reference files.

On occasion, individuals who have been subject to severe cases of identity fraud will receive a new SSN.

In these cases, it is possible to verify that the name, date of birth, and SSN provided by the individual match those in the records of the Social Security Administration. This process requires an additional authorization be provided by the applicant and may delay the background investigation by a couple days.

When a provided identity information can neither be corroborated nor verified directly with the SSA, the background investigation can still be conducted with the caveat that we are simply trusting the identity information provided by the individual.

 

Researching Criminal History and Sex Offender Registrations

Television police dramas and the ubiquity of information on the internet lead many to believe that searching an individual’s criminal history is as simple as conducting an online database search.

And, indeed, many unsophisticated employers rely primarily on “national” criminal database searches to identify candidates’ past criminal history.

However, these databases miss 70% or more of the criminal records in the US.

98% of criminal records originate in the county-level courts where the violation of state law occurred. These offenses include everything from simple theft-by-check cases to capital murder.

The remaining two-percent of criminal cases originate in the federal court system. These cases arise from violations of federal law. Examples include child pornography, interstate gun and drug crimes, insurance fraud, fraud against the government, bank robbery, and human trafficking.

Thorough criminal background investigations include searches of the live records of the courts in each county, state, and federal jurisdiction associated with an individual in—at a minimum—the past ten years.

In most jurisdictions, this means sending a researcher into the local county courthouse to search the courts’ records.

Many states maintain databases of criminal records reported to the state by local counties. Because most states have decentralized criminal court systems, most of the state criminal record repositories are very incomplete.

For example, Texas’ state criminal database misses one-third of the inmates of Texas’ death row! Most other states aren’t much better.

However, searching the available statewide records occasionally will identify criminal records in a county not included in research based on the individual’s address history.

And even when hands-on criminal history research is being conducted, most background screening companies rely on large data brokers who wholesale the research. It is in these data brokers’ interest to cut corners in how they conduct research—limiting the thoroughness of the research they conduct, which records they report, and the level of detail or explanation they provide with any reported records.

A reputable background investigations firm will explain how research is conducted and what limitations they place on reporting criminal records.

A list of questions that should be asked of any potential criminal background check partner is available at https://pfcinformation.com/questions.

Additional to searching criminal records, household employers are necessarily concerned about sex offender registrations.

There is no centralized database of sex offender registrations in the United States.

Sex offender registrations are maintained on a state-by-state basis and each state has different standards for what offenses require registration, how long individuals must remain registered, and which registrations are open to the public.

The United States Department of Justice maintains a website that attempts to conduct a search of all 50 states’ and many territories’ online sex offender registry websites. While it is a useful tool, the variations in different states’ data format and availability means that it can generate multiple false-positives (registrations that don’t belong to the individual being searched).

Additionally, because at any given time, some states’ sex offender websites may be not be functioning properly, the DOJ website may fail to identify a registration that is relevant.

A direct search of the sex offender websites in each state associated with the applicant is always the most reliable means of searching for sex offender registrations while the Department of Justice’s website is a helpful safety net to identify the rare sex offender registration in a state not associated with the individual’s address history.

The Integrity Test

Some domestic staffing firms only attempt to verify an applicant’s employment or education history to the extent that it is related to some sort of domestic service (nannies, drivers, house managers, etc.)

However, the employment application or resume and any claims the applicant made during the interview should be viewed as an integrity test.

Any exaggeration, omission, or outright falsehood is indicative of the applicant’s integrity—regardless of whether the information is directly-related to the position sought.

Many applicants subtly alter the dates of previous employment to avoid questions about gaps between positions.

Others fabricate entire employment engagements or schooling.

Some claim licenses or certifications that have expired or that they never held.

If an applicant lies at the interview stage, it is not reasonable to expect their behavior to change after they are hired.

Whenever possible, verification of an applicant’s claims about past employment, education, or other job qualifications should be a priority.

Non-Disclosure Agreements

It is not uncommon in the personal service profession for employees to sign non-disclosure agreements, some that go so far as to prohibit the employee from ever revealing the names of their employers.

This puts both the prospective employer and the applicant in a challenging situation.

The employer would be unwise to simply rely upon the applicant’s claim that they are bound by an NDA and cannot provide the name—much less contact information—for a former employer. An applicant may make this claim to try to avoid a negative employment reference or to simply cover a prolonged period of unemployment.

Often, if the applicant truly left the previous employer on good terms, they can successfully reach out to the family office or house manager to request they provide a reference.

In the case of high-profile executives, politicians, or celebrities, a law firm representing the employer may act as an intermediary, providing at least a confirmation of employment for their unnamed client and, if the employee is lucky, some positive feedback about their service.

However, employers should be wary of accepting letters of recommendation that cannot be independently authenticated.
A transcript of an applicant’s tax filings, including information about employers who issued them W-2s or 1099’s in a given year may also help verify employment claims—and identify employment the applicant may have omitted from their resume.

Digging Deep in Employment References

Beyond verifying the basic details of previous employment, attempting to obtain first-hand input about the applicant’s competencies and behavior from previous employers is especially important when hiring caregivers and other household employees.

While attempts to obtain references from previous employers are becoming less frequent in the corporate arena due to the misguided belief that they “never” yield valuable information, they are critical when hiring someone to work in a home or with family members.

Preparation for the conversation with the previous employer should start during the interview with the applicant. Simple questions about the details of their responsibilities, successes and challenges they faced in the role, and even whether there were personality conflicts between family members and the applicant should be presented to the applicant during the interview.

A good interviewer will “peel the onion,” asking for more detail than the candidate may initially provide to get a good understanding of the applicant’s perspective—and to pin them down to a single story.

Then, during the conversation with the previous employer, similar questions should be posed—without initially sharing the information the applicant provided to avoid biasing the employer’s answers.

Again, the interviewer should “peel the onion,” digging deeper into the former employer’s experiences with the applicant.

Additionally, a number of standardized interview questions related to the applicant’s behavior should be posed. These may include:

    • Do you recall where this applicant worked before coming to your home? Would you be willing to provide a copy of the resume or application they provided?
    • What were the circumstances of the applicant’s leaving your employment?
    • Do you know where the applicant went to work after leaving your employment?
    • To your knowledge or suspicion, was there ever any reason to question the applicant’s honesty or integrity on or off the job?
    • To your knowledge or suspicion, did they ever act in a threatening, coercive, or violent manner on or off the job?
    • To your knowledge or suspicion, did they ever demonstrate a lack of self-control, impulsiveness, or poor self-regulation on or off the job?
    • To your knowledge, did they ever act in an unsafe or careless manner on or off the job?
    • To your knowledge or suspicion, is there anything additional that a family considering this person for a safety-sensitive position of high trust should be aware?
    • Is there someone else who may be able to share additional relevant information about this applicant?

It sometimes feels “icky” to ask former employers detailed questions about a candidate’s past behavior. However, the momentary discomfort is far outweighed by the risk that relevant information is missed simply because the questions weren’t asked.

Some previous employers are very busy and unwilling to spend more than a few minutes on the telephone. Because of this, we recommend asking the most risk-related questions early in the conversation in case the interviewee has to cut the conversation short.

Another challenge with reference interviews is verifying that the person was truly a former employer and not simply a family member or friend who is posing as a former employer to provide a glowing recommendation of the applicant.

To help avoid this, some risk-averse employers may request that a background investigations firm attempt to verify the name and address registered to a provided landline or cell phone number.

It is not uncommon that individual has the same the address or even has the same last name as the applicant, suggesting that the reference is a family member or friend.

Because the principals in the kinds of families who have domestic staff are typically very busy individuals, actually obtaining an interview with a previous employer can be challenging—they often happen outside of work hours, on weekends, or other times convenient to the former employer.

Some agencies and screening companies attempt to use email to contact former employers.

Relying upon email addresses provided by an applicant creates another opportunity for fraud.

In cases where the individual’s email domain clearly belongs to the family office or a business, this may result in more reliable, if less thorough, responses.

It is very difficult to verify that a Gmail or other free email address truly belongs to the former employer. An applicant can easily create an email address that appears to belong to the former employer but in reality is managed by the applicant.

Email or online reference checks also make it more challenging and time consuming to ask relevant follow up questions.

The most reliable verification information comes from a direct conversation with the verified former employer.

Why Off-Duty Personal Affairs Matter

In addition to past criminal conduct, household employers are often concerned about other conduct or personal circumstances that may affect the family’s safety or security.

An applicant’s driving history, for instance, can shed light on the individual’s safety awareness and self-management. This insight is relevant for most family-related roles—even if the individual would not be driving on behalf of the employer.

An applicant’s behavior resulting in lawsuits or mismanagement of their finances may be reflective of an applicant’s self management and ability to make wise decisions.

Social Media and Online Conduct

Many employers conduct cursory reviews of candidate’s social media profiles. However, reviewing years of posts, likes, and comments across multiple social media platforms manually simply isn’t feasible in most cases.

And simply Googling an candidate’s name can return an excessive number of items—many of which are unrelated to the candidate.

It also risks exposing employers to protected class information that cannot legally be used in making a hiring decision, including age, race, sex, religion, national origin, and sexual preference.

A more efficient and legally safe means of searching social media and the internet is to use automated search tools that can delve deep into an individual’s social media profiles for items of interest, focusing both on keywords and image content.

These items of interest often include content concerning violence, hate speech, illicit drugs, alcohol abuse, theft, or radical political behavior.

Unique searches to address an employer’s specific concerns can also be developed.

While faster and more thorough, these automated searches often return items that, in appropriate context, are not relevant to the employer’s concerns and put the employer at risk by introducing protected class information. For instance, a post where the individual boasted “I’m killing it today!” may be flagged for violence while the individual was simply referring to their productivity level.

For this reason, the background screening company should carefully curate the results produced by the automated search tool, ensuring that only information relevant to the employer’s concerns are delivered.

Personal Financial Affairs and Bankruptcy

A cursory review of an individual’s financial affairs may provide insight into their judgment and how well they manage their own business.

It is important to remember that individuals have negative financial histories for a variety of reasons, including  many outside of the individual’s control such as a serious illness, a spouse’s loss of employment, or prolonged unemployment during a financial crisis.

However, careful review of negative history items can also suggest financial irresponsibility, failure to manage one’s personal business, or simple lack of accountability.

As with all other aspects of the background investigation, it is important and fair for the employer to have frank conversations with an applicant with a negative financial history, giving the applicant an opportunity to place their financial history in context of their overall experience and conduct. For many employers, this is an uncomfortable conversation. However, for individuals considered for positions of great trust, it is a critical conversation.

A search for bankruptcy filings is a common item in background investigations.

When a bankruptcy case is found, retrieving copies of the filings will reveal the names of creditors and the amounts owed. Sometimes, it is obvious that circumstances outside of the applicant’s control caused the bankruptcy while other times it seems apparent that the applicant created excessive unnecessary debt with no reasonable expectation of being able to pay it back.

Multiple bankruptcy filings may suggest that the applicant is simply “gaming the system,” using the bankruptcy process to delay collections attempts without intending to actually proceed with the bankruptcy.

Employers might also request searches for liens placed against the applicant’s property for unpaid debt or abstracts of judgment filed related to lawsuits in which the applicant was ordered to pay monetary damages. These searches typically ignore liens related to routine real estate transactions.

Many household employers ask for applicants’ credit histories.

Because of the regulations surrounding credit reports, background screening companies will not provide credit reports directly to families although they will often provide them to the domestic placement agency.

An alternative to obtaining a credit report through a background screening company is simply to request that the applicant provide a copy of their credit report directly to the employer. All consumers have a right to retrieve their credit report from each of the three major credit bureaus annually. This can be achieved at https://annualcreditreport.com.

The individual will likely need to access this website to request their credit report while at home because the identity verification process asks a number of questions that the individual may not be able to answer without consulting their records (e.g., what is the name of the bank through which your motor vehicle is financed?)

However, the employer should not accept the credit report printed and provided by the applicant. We have seen cases where the applicant saved the credit report to an electronic document and attempted to edit it before providing it to the employer.

Rather, the employer should ask the individual to log into a computer at the employer’s office or home and print a copy of their previously requested report, affording no opportunity for editing.

Personal Relationships That May Suggest Risk

A search for recent civil protective orders (also known as restraining orders) may reveal that the applicant has recently been in the unfortunate position of seeking law enforcement and the judicial system’s protections from another person such as a violent former significant other or a stalker.

While such situations are tragic for the applicant, they may also suggest some level of risk for the family—especially in circumstances where the applicant might accompany children or other family members in public.

Who Sued Them (and Who They’ve Sued)

Likewise, civil litigation involving the applicant may be relevant to the role.

For instance, a review of civil cases may show that the applicant was sued because they committed a negligent act while operating a motor vehicle.

Or that the applicant simply doesn’t take care of their own financial affairs and has had multiple creditors sue them to recover amounts owed.

On the other hand, if a number of civil cases are found listing the applicant as the plaintiff (the person bringing the lawsuit against another party), this may suggest that the individual is a “professional plaintiff,” always looking for their next big payday.

Often, an applicant’s involvement in civil litigation is determined not to be relevant to the role. However, the only way to judge whether the information is relevant is to conduct the research.

Legal Considerations

The federal Fair Credit Reporting Act governs any information purchased by an employer or placement agency about an applicant or employee—even when no credit is involved.

The FCRA requires that employers make certain disclosures to the individual and obtain the individual’s signed consent before ordering a background investigation.

The employer has additional responsibilities if the investigation report contains information that may, in whole or part, result in an adverse employment action. This includes providing the individual a copy of their report and a summary of their rights before taking the adverse action and, after the individual has received that information, providing them additional information after an adverse action is taken.

Additionally, some states and even municipalities have limitations on when an employer can inquire into an applicant’s criminal or credit history, what kinds of criminal history can be considered, and what processes an employer must follow when making an employment decision based on this information.

Many of these rules apply to families with only one employee just as they would to a major corporation with thousands of employees.

Employers should work carefully with their employment counsel and their background investigations partner to ensure that they understand the laws that are applicable to their circumstances.

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