The decision to screen job candidates for criminal backgrounds and drug use is often a hard one for businesses to make. Finding the right balance between protecting themselves from liability while still attracting the best job applicants can be tough. But with the right policies and application process, screenings can help a business without hurting its hiring prospects.Two recent trends complicate criminal background screenings of an applicant:

  • Negligent hiring lawsuits are on the rise. A cause of action of negligent hiring may occur when an employee’s actions result in the injury of a third party and appropriate screening would have prevented the employee’s hiring in the first place. The average cost of a negligent hiring suit between 1992 and 2001 was one million dollars, according to Chris Robison of the law firm Hinshaw & Culbertson.
  • Many states and municipalities now prohibit certain screening practices. Laws such as “ban the box” vary widely by location, but most still allow screening once a conditional offer of employment has been made.

Employers may find themselves in a difficult legal position, risking a negligent hiring suit if they don’t screen, treading closely to a legal violation if they do.

7 Tips for Successful Hiring Screening

Businesses can follow these suggestions to improve their screening processes:

1. Use the right level of screening for the job.
An employee driving a commercial truck to deliver expensive equipment has a high level of responsibility and could potentially injure others in an accident. This employee may need a thorough background check, whereas an entry level secretary who has minimal interaction with clients may be hired based on just an interview.

2. Judge the applicant, not the incident.
Businesses that eliminate every applicant with a criminal history may miss out on the best person for the job. Patterns of behavior are often more telling than isolated mistakes.

3. Look for gaps in job history or omitted supervisor contact information.
Holes in a resume beg follow up questions. Is the candidate reluctant to divulge something? If so, learning the “why” can reveal much about their character even if it is unrelated to criminal activity or drug abuse.

4. Fact check applicants’ resumes.
Forty-six percent of reference checks revealed disparities between the information provided by the applicant and the facts reported by the source.

5. Ask for references — and follow up with them.
Personal and work references are an effective, cheap and quick source of information about an applicant. Use them.

6. Document everything.
Efforts to protect against liability are only as good as the records that are kept. Any screening which is not documented will not hold up in court.

7. Ask good questions and listen to the answers.
Get the whole story and follow your instincts. You are the best hiring screening available.

Benefits and Drawbacks of Conducting Drug and Background Screenings

Screenings help protect against negligent hiring lawsuits and can help businesses decide between two equally talented applicants.

But such practices, if overutilized, can cost businesses good employees by:

  • Discouraging qualified applicants.
  • Giving off the appearance that a company doesn’t trust its employees.
  • Making an impression of callousness toward workers.
  • Adding time and expense to the job application process.

Factors Affecting the Risk of Negligent Hiring in a Job Position

According to my friend, who’s an injury attorney in Fort Myers, FL, for many positions, an employer’s justifiable interest in an applicant’s criminal background or consumption habits is minimal. For others it is essential. Deciding whether screening is appropriate depends on many factors including, but not limited to:

  • How much the employee will interact with customers.
  • Whether the employee will enter private homes.
  • Whether the employee will drive on the job.
  • How much money or confidential paperwork the employee will handle.
  • Potential hazards and the safety requirements of the position.

A delivery driver who abuses drugs and alcohol creates more risk than an office worker who keeps to a desk. And it may be risky to hire an insurance adjuster to make large settlement payments if they have a history of committing fraud.  By only screening for jobs with a significant risk of bringing a negligent hiring suit, a company will protect itself from liability while minimizing the negative consequences of screening.

Businesses that utilize third-party recruitment services or use a co-employment model may offset some of the risks of negligent hiring and employment compliance. Setting clear screening guidelines that meet government requirements and sticking to them in every situation can help avoid discriminatory hiring practices, which require that businesses treat equally situated candidates in an equal manner.

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