Right to Privacy in Business

Daki · Post by **Daki** » Mon Aug 04, 2003 3:51 pm

A situation was raised by a candidate I was talking to. Here is the context: We are looking for a Finance Assistant for our Waterloo, ON office. I screened this candidate, Mr. X, and presented him to the Controller and Manager for review. They both agreed he looked good on paper and wanted to interview in person. Great. I set up the interview and send my usual confirmation e-mail to the candidate. Attached to that e-mail are two forms: our application and our background check release form.

Side note: We use a 3rd party firm to do the background checks. They only verify education, employment and criminal

Candidate e-mails me back the next day saying he doesn't feel he should have to submit to a background check for this position. It is an invasion of his privacy and something he thinks only cops and teachers should have to do. I reply saying that it is part of our policy and that we only verify the information he has listed on his resume.

Now... why do we do this? Two reasons.

1.) Up to 20% (the number varies depending on who is doing the report) of candidates will lie on this application and/or resume.

2.) We do work for the Candian and US governments. They contractually /require/ us to be able to provide evidence that we checked the candidates information with an independent source. They do no budge on that and we /must/ continue to check their backgroud to maintain our contracts.

So the candidate has refused to interview for the position.

Personally, I have no problems subjecting myself to a background check for a position. There have been several times I have dealt with candidates like the one above who refuse. Many of them say it is "illegal" to do such a thing. It is not and it amazes me the misconceptions people have about labor laws but that's another topic.

What I wanted to venture forth with is... should this continue? Should background checks be limited for just certain positions? Was the candidate just afraid something would come up in the background check and that is why he made a show out of refusing?

Thoughts?

Gunny · Post by **Gunny** » Mon Aug 04, 2003 5:13 pm

background checks should be required no matter what the job.

FlameBlade · Post by **FlameBlade** » Mon Aug 04, 2003 5:29 pm

Before answering...

1.) Up to 20% (the number varies depending on who is doing the report) of candidates will lie on this application and/or resume.

What is usually the result of lying on applications? That is, from your perspective, Daki?

Gunny · Post by **Gunny** » Mon Aug 04, 2003 5:45 pm

FB: I'm not Daki, but I play one on TV. keeping that in mind, here's my answer to your question.

they don't get the job or they're fired.

this is how it works at TEKsystems:
-consultant (interview person) has resume of education/skill levels/past employment.
-client (interested company) sees that consultant has apparent background that fits their needs.
-consultant and recruiter (or HR) meet for interview (possibly several times).
-client gives the nod and consultant returns to fill out paperwork. paperwork consists of contracts and release forms to verify past employment, education and drug screen. release forms specifically state that any false information will result in termination of contract. consultant signs contracts and release forms stating all is good.
-sometimes results of release forms don't come back until after consultant already started job. but when they do, the client and consultant are notified of falsification and breech of contract.
-consultant is terminated via recruitment office (or HR) and client may hire directly if so inclined.
-OR-
-client learns that consultant knows piddly dispite his/her resume and may terminate consultant if so inclined.

what I've seen is that TEKsystems is intolerant of breech of contract/release forms. the company /will/ blacklist that consultant from working with us (any of our sister companies) or working with any other recruitment firm (ManPower) and those firms usually pass the word on with any other that they work with. it's a nasty chain reaction and is not worth lying on a resume about.

something that these lying consultants don't realize is that 80% of the time, the client will be willing to train the person (provided that person has a little prior experience in that particular skill field) and the recruitment firm will pony up the dough for that consultant to get schooling on that particular skill.

FlameBlade · Post by **FlameBlade** » Mon Aug 04, 2003 5:59 pm

Since...it is a necessary step to prevent lying...lying isn't a good way to get a job. And also...since it is a part of contract to governments...then I'd say that background checks is permissible.

It's better way to keep people in check, and it's a way to ensure that people does have skills listed...it would be unfair to some companies if people lied...because that person would be not as effective as other applicants.

So I would say that background check here would be a good idea...considering all factors...

Jestyr · Post by **Jestyr** » Mon Aug 04, 2003 6:56 pm

Given that the background check only covers employment, education and criminal history, I don't think it's that big a deal. It's no different from a prospective employer ringing an ex-employer direct and saying "Hey, Fred Smith put you down as a referee. He used to work for you? What was he like?"

I'm possibly a little leery of the fact that a separate company does it, largely because I would prefer a society where personal information isn't spread around quite as widely as it is now, but in today's business environment outsourcing is the name of the game, so the third party checker was probably inevitable, if not desirable.

Daki · Post by **Daki** » Mon Aug 04, 2003 7:42 pm

FlameBlade wrote:Before answering...

1.) Up to 20% (the number varies depending on who is doing the report) of candidates will lie on this application and/or resume.
What is usually the result of lying on applications? That is, from your perspective, Daki?

If someone lies on an application and it is substancial they are removed from consideration for a position.

If it is a minor discrepency (i.e. they said they made 60K and really only made 59.5K) it is not an issue.

Jestyr wrote:I'm possibly a little leery of the fact that a separate company does it, largely because I would prefer a society where personal information isn't spread around quite as widely as it is now, but in today's business environment outsourcing is the name of the game, so the third party checker was probably inevitable, if not desirable.

Actually, it's better that a 3rd party company do the background checks. Mainly because that removes the potential for any bias from the hiring company since it is a neutral party doing the verifications. It is also necessary for audit purposes.

TheScamp · Post by **TheScamp** » Mon Aug 04, 2003 8:14 pm

I used to be on the other side of this thing; I was the person who released an individual's educational informaton. And, unless FERPA has changed in the last 3 years, you don't need a signature to obtain dates of attendance and degrees awarded.

The problem I have with signing such forms is that they're often wayyy too vaguely worded for comfort. Often they're just generic "look at anything you want" forms, and I absolutely understand a person's reluctance to sign those types. Now, I don't know what your forms look like, Daki, so I can't specifically say. However, many companies (understandably) simply have one form that they use for absolutely everything, and it theoretically allows the release of just about anything - GPA, credit history, etc. That might be what the individual was concerned with, and a more specifically worded release might alleviate the problem.

Daki · Post by **Daki** » Mon Aug 04, 2003 8:17 pm

The form we use is given to us by the company we use for background checks. They can do every type of check out there and their form reflects that. That is why I tell every person I send them to that we are only checking education, employment and criminal. I also explain why the form is that vague and assure them we do not check anything but what I mentioned.

TheScamp · Post by **TheScamp** » Mon Aug 04, 2003 8:24 pm

Nonetheless, it may very well be the broadness of the form that is the problem. I mean, in some ways, it's kind of like giving a credit card to your child's college roomate, and trusting that they'll only use it for emergencies. It's a leap of trust that is understandably difficult for some people to take.

Gunny · Post by **Gunny** » Mon Aug 04, 2003 8:43 pm

here's a fragment of our release form for a Consumer Report done by an independant contractor, Background America, Inc. (BAI):

"The above-mentioned consumer reports may include, but are not limited to, employment and education verifications; personal references; the individual's personal credit history based on reports from any credit bureau; the individual's driving history, including any traffic citations; a social security number verification; present and former addresses; criminal conviction and civil history; any other public record; and, any other information bearing on the individual's credit standing, credit capacity, credit worthiness, character, general good reputation, personal characteristics, and/or trustworthiness."

we also give the consultant a copy of BAI's contract that lists what they look for before we give them paperwork to sign. if the consultant is satisfied with that, then they can sign the release form.

TheScamp · Post by **TheScamp** » Mon Aug 04, 2003 8:57 pm

Which is exactly my point. When someone tells you they only want to check your employment, educational, and criminal history, why the hell do they need permission to run a complete credit check, look at the deed to your land, and eye your driving history?

Gunny · Post by **Gunny** » Mon Aug 04, 2003 9:20 pm

eyeing your driving record is to look for things like felony counts with your vehicle and excessive DWI will definatly get you scratched off the hiring list.

they do a credit check because if you have to pay any court ordered funds from your paycheck and don't make note of that on your paperwork, no one will know to dock the amounts until the recieving party of those funds find out about the job and notify the court (which then notifies the company and we don't like it when we find out that way).

it's all about company CMA. Cover My Ass. it's about making sure that every stone is turned to prevent lawsuits (unless warrented) during these sue happy times.

TheScamp · Post by **TheScamp** » Mon Aug 04, 2003 9:58 pm

Oh, I'm not necessarily saying that there aren't reasons for those inclusions, (even though there are multiple redudancies for the reasons you stated) just that many people see what appears to be an excessive amount of permissions that don't directly pertain to the job in question. Jealous guarding of a great deal of that information is completely understandable, in my book.

Gunny · Post by **Gunny** » Mon Aug 04, 2003 10:38 pm

to which I agree, especially with the alarming rate of identity theft these past couple of years.

Anguirel · Post by **Anguirel** » Tue Aug 05, 2003 1:46 am

I've only signed one variant of such a form, and I objected at the time because it was a literal release from liability as well as a permission form. It stated that the company not only was allowed to ask me to undergo some screening procedures, but also that if an error was made at their end and it prevented present or future employment that I could not hold that company liable for it and (essentially) I would have no legal recourse in that event. I objected to that aspect of it because if they screw up I want them to do everythign in their power to remedy the situation. I would not mind saying that I could not, for example, sue for more than lost salary or even sue for monetary recompense at all. On the other hand, I do want to be able to swing a lawsuit-stick at them if they refuse to correct the error and work to get it removed or at least properly annotated on whatever public or private records it ends up.

I have no problems with a background check as long as all pertinant information was previously requested and anything not requested but found has no bearing on the hiring decision. For example, a hypohetical applicant once served time for petty larceny twenty years ago. As the hiring firm you do not request information about crimes before a certain date, or otherwise ask for that information. When it turns up in the background check it should not become grounds to reject him over a similarly (or worse, less) qualified candidate.

The clauses in relation to "any other information bearing on the individual's credit standing, credit capacity, credit worthiness, character, general good reputation, personal characteristics, and/or trustworthiness" also seem unnecessarily broad. I can see an applicant requesting that that portion be clarified or removed. I don't think I want my lack of social graces in fifth grade being an element of the hiring process, which could be the case with the above line.

Cipher · Post by **Cipher** » Tue Aug 05, 2003 2:39 pm

Daki wrote:I also explain why the form is that vague and assure them we do not check anything but what I mentioned.

Well, pardon me if, as a security-conscious applicant, I find your assurance a little short of satisfactory.

If it comes up frequently (i.e., a lot of applicants freak out when they have to sign the paperwork), you may want to look into getting a more specific form. Hell, I have enough trouble looking up a person's phone record when I give them a piece of paper that says, in pretty distinct letters, "This Does Not Give Us The Authority To Change Any Aspect Of Your Phone Service."

If it rarely comes up, then deal with it when it happens and don't lose sleep otherwise.

Daki · Post by **Daki** » Tue Aug 05, 2003 3:25 pm

Oh, the situation is the exception not the rule here. I'd say maybe 1 out of 100 people.

Cipher wrote:Well, pardon me if, as a security-conscious applicant, I find your assurance a little short of satisfactory.

To which I immediately reply: We are professionals. We do not grow from 10 to 1200 people in ten years by screwing around with people.

Gunny · Post by **Gunny** » Tue Aug 05, 2003 3:40 pm

Anguirel wrote:I have no problems with a background check as long as all pertinant information was previously requested and anything not requested but found has no bearing on the hiring decision. For example, a hypohetical applicant once served time for petty larceny twenty years ago. As the hiring firm you do not request information about crimes before a certain date, or otherwise ask for that information. When it turns up in the background check it should not become grounds to reject him over a similarly (or worse, less) qualified candidate.

personally, I can't say how far back companies look for criminal record. we have a completely different form that relates to prior criminal history (if any). but, as a hiring firm, I feel that we have every right to check your criminal record as far back as the law allows. even if they were crimes committed twenty years back, it's still important for the hiring firm and the client to be aware of those things. as far as I know, our contract notes that it only goes 5 years back. I don't know if they actually only go 5 years back or go as far back as possible (although I assume they stick to contract because if the consultant finds out and that kept him from getting work, there would be some lawsuits in the files that I go through every day - I'll update this if I find any).

it all depends on how far back the laws allow companies to search in your background. if the law allows to go back as far as 10 years, then most companies under that law are going to search your background to the maximum amount. as long as you're upfront and list the felony counts within the year brackets that they'll look through, you won't have to worry about being fired because of "contract falsified due to prior undisclosed criminal history".

((Update - I just found a file where the company fired a consultant due to undisclosed criminal history. the consultant took it to the wage board (first stop before court) and the wage board found that the company was at fault because prior traffic tickets did not fall under felony counts and that's all we look for, according to our contract. the consultant then filed a lawsuit to recover the lost wages for his full contract. the company settled and let him have it, including any vacation/holiday time.

I'm looking at the contract he signed and comparing it to the current contract. there have been some changes, such as clarifying what a felony is and giving examples of what a felony is not - i.e. traffic tickets. this was back in.... 1998.))

Anguirel wrote:I don't think I want my lack of social graces in fifth grade being an element of the hiring process, which could be the case with the above line.

I think you're being a little dramatic. like I said, it depends on how far back the law allows companies to search your history. companies take a risk everytime they hire someone new and they want to make sure that they're getting someone that's relyable and someone they can trust to do their job. they have a reputation to maintain that's far more important than your personal insecurities (no offense) towards the screening process.

Anguirel · Post by **Anguirel** » Tue Aug 05, 2003 11:43 pm

Gunny wrote:I think you're being a little dramatic.

Absolutely. It isn't that I expect the company to go that far or be that thorough, I just find it odd and somewhat disconcerting that they feel the need to word the release form in such a way that it allows for that. They likely have a standard procedure which, if it doesn't find anything glaringly odd, will be rubber stamped as "ok". If it finds something immediately as bad, it rubber stamps it as "not ok". There's only a small sliver of odd but not directly enough to cause a problem that would ever need to go further, and I'm not seeing the point in wording the form to allow the company to essentially check into (and utilize if desired in the decision-making process) any shred of information even if it has nothing to do with a person's professional demeanor and current attitude and abilities. If they aren't ever going to look back that far it wouldn't be hard to word the form to lay out exactly how far and what exactly they might actually do. They do not word it in that fashion however, and leave it exceptionally vague as to what actions they might take and what resources they may tap, therefore, I must assume that they will look into my life that closely and I question their reasoning for needing access that degree of information. Mostly I'd be curious why they feel the need to be able to research it that thoroughly.

ratlaw · Post by **ratlaw** » Wed Aug 06, 2003 12:39 am

Gunny wrote:background checks should be required no matter what the job.

Was this a joke or a serious comment? Outside of the entire personal privacy issue, there are plenty of jobs and businesses where the /cost/ of running background checks on every potential employee out weighs the supposed benefit of not hiring certain applicants. For instance, high turnover jobs suchs as waiting tables, washing dishes, cook, street sweeper, bicycle shop repairman, TV repairman, construction, etc. A blanket statement like that is clearly just as ludicrous as saying "no job should require background checks." More pertinent, does the job in question need a background check. I'm not sure what a Finance Assistant does, but I'm assuming it relates to bookkeeping and accounting. That's a sensitive enough position that as an employer knowing if your prospective employee has a lot of debts, a history of failure to pay his debts or similar credit history type issues is worth the cost, both monetary to the company and privacy invasion of the employee.

Thorn · Post by **Thorn** » Wed Aug 06, 2003 4:54 am

To which I immediately reply: We are professionals. We do not grow from 10 to 1200 people in ten years by screwing around with people.

I'm not trying to say anything about your company specifically, Daki, so please don't take this personally.

However, I've been screwed over by plenty of "professional" people/organizations for ridiculous reasons, and I've seen plenty of businesses become very successful thanks to some seriously "unprofessional" behavior. Success and professionalism hardly go hand in hand in this world, and I'm sure plenty of other people have arrived at that very same conclusion. Just had to quibble on that point, sorry.

Of course, I like paying my rent, and I like being able to take a vacation, and I /really/ like this whole health insurance thing, so for the time being? I sign the damn forms and hope for the best.

Jestyr · Post by **Jestyr** » Wed Aug 06, 2003 8:29 am

Daki wrote:To which I immediately reply: We are professionals. We do not grow from 10 to 1200 people in ten years by screwing around with people.

Like Thorn says, this isn't a personal attack on you, but: dude, corporate growth does not guarantee corporate ethics.

ratlaw · Post by **ratlaw** » Wed Aug 06, 2003 8:56 am

Enron anyone?

3278 · Post by **3278** » Wed Aug 06, 2003 9:22 am

One side of background checks I've never understood was drug testing. Hiring practices - in my state, at any rate - don't allow your criminal record to automatically bar you from employment, but the results of a drug test can. It can't be that the employers are allowed to not-hire you because of concern that you might do drugs on the job; it's just as likely they'd rather you not kill people on the job. I always think it's funny that if I get arrested for possession and then apply for a job, I can't be refused the job on those grounds. But if I /don't/ get arrested for possession, but then take a drug test, I can be refused employment.

I wonder, if you could "test for" other activities, like killing people or raping old folks or whatever, if it'd be considered constitutional for companies to test and not-hire or fire you.

Daki · Post by **Daki** » Wed Aug 06, 2003 4:30 pm

Jestyr wrote:
Daki wrote:To which I immediately reply: We are professionals. We do not grow from 10 to 1200 people in ten years by screwing around with people.
Like Thorn says, this isn't a personal attack on you, but: dude, corporate growth does not guarantee corporate ethics.

I didn't take it as a personal attack. I was just giving what my response would be. Are all companies professional in regards to background checks? No. It would be insane to assume as much. But it is also insane to believe that all companies are unprofessional in how they handle the things. Just because the bad cases get more media play, that does not mean they are the majority.

Gunny · Post by **Gunny** » Wed Aug 06, 2003 4:40 pm

background checks on all sorts of jobs are a requirement not just for the company, but for the people that also work for that company. the company /needs/ to know what kind of person they're considering bringing in. companies are not lawfully allowed to deny you work because of your background, race, ethnic, religion, etc. does that mean they follow this? not always, but if you can prove you were denied work due to these reasons, I say stick 'em where it hurts. I do feel, however, that companies should only dig into a person's background as it relates to the job and nothing more.

I screen people very carefully before sending them to a recruiter. I ask them questions about their education, personal skills, on the job skills and last places of employment. I tell these people before I ask that I'm going to ask them questions so I can best determine if the company can help them find work and so I'd know which recruiter would best suit them. background checks are essentially the same thing, but more indepth and go further back. you have every right to refuse these background checks and companies have every right to refuse you work without a background check.

a hiring firm/company is responsible for every candidate they hire and/or send to a client site. the stakes for failing to do a thorough background check go beyond hiring someone without the appropriate experience or skills. employers have been found liable for negligent hiring if an employee goes on to commit inappropriate acts.

background checks are done using public information/records and /anyone/ can access this information. companies aren't tapping your phones, tailing you during the day or leaving bugs in your home to listen to your conversations in order to determine if you're right for the job or not. well, they shouldn't be anyway. public records are not protected by Right to Privacy. you are also protected under the Fair Credit Reporting Act (provided the check is done by a 3rd party), which tries to balance your privacy rights with an employer/hiring firm's interest in obtaining info about you. did you know that you can request a copy of background checks done on you (also provided that the company used a 3rd party)? yes indeed you can.

of course, all of this varies depending on individual state, federal & county laws pertaining to the type of job being applied for. if you're paranoid about what will be scratched up during a background check, opt to have one done on yourself, by yourself. that way you can see what companies will see (generally).this is a good source of info about employment backgrounds. yes, it's primarily a California thing, but it's still good reference material.

Anguirel · Post by **Anguirel** » Wed Aug 06, 2003 8:57 pm

3278 wrote:I always think it's funny that if I get arrested for possession and then apply for a job, I can't be refused the job on those grounds. But if I /don't/ get arrested for possession, but then take a drug test, I can be refused employment.

Sounds perfectly reasonable to me. If you get arrested for possesion and test positive for drug use, you can still be refused employment (though you may be granted a short-term expemtion for drugs that take multiple months to clear your system (from a drug test perspective) after you've served your sentence). If you've been arrested previously and are now clean, you should not be denied employment (you've cleaned up your act, in theory). If you haven't been arrested but do drugs that could impair your ability or alter your behavior (and that is, generally, the point of most drugs) then your employability should be in question for many jobs.

Gunny · Post by **Gunny** » Wed Aug 06, 2003 9:13 pm

so, let me ask this. when you don't get the call back about if you have the job or if you get the "I'm sorry, but you didn't meet the qualifications for the job" call, how do you prove that you were denied work due to your background check and/or drug screen*?

(provided the company in question didn't use a 3rd party for investigation - which is silly, but this is hypothetical)

*(making the assumption that the applicant, you, were truthful when filling out the forms and signing the waivers)

Anguirel · Post by **Anguirel** » Wed Aug 06, 2003 11:40 pm

Unless they say it specifically (and I usually ask if I get the chance), I don't know unless I have a friend in the department somewhere who can find out. Alternately, if a candidate whom I know to be less qualified is signed instead (and the reason given isn't that I'm over qualified) and I was truthful upfront and knew that what I'd written shouldn't have denied me a place in the company, I might begin to wonder whether the background check or some other screening test had an error on it. I suppose it probably isn't the case, but I'd hope they'd, you know, ask me about it -- "Hey, you tested positive for drugs. Sorry, can't hire you..." or "A felony showed up on your background check. Care to explain it?"

Gunny · Post by **Gunny** » Thu Aug 07, 2003 3:41 pm

Daki and I can definatly relate to someone less qualified getting jobs we applied for. I usually think of it this way, if they're willing to hire someone with less credentials than me then maybe this isn't the place for me and maybe they're doing me a favor.

Daki's told me a couple stories where the company decided to go with a less qualified person because they were worried that the more qualified candidate would be bored with the job since there would be no challenge. regardless, if I was that candidate, I would have liked to be able to make that choice for myself.

Daki · Post by **Daki** » Thu Aug 07, 2003 4:08 pm

Let me expand on that a bit...

I have seen several managers turn down very good people because they were too good. In the job market right now, people are willingly taking lower positions just to get work. The long term problem is that when the market improves again, those people who took less will jump at the first sign of a better job. We are very focused on long term employees here so we don't want to bring on people who will only stay until they find something better.

Wildfire · Post by **Wildfire** » Thu Aug 07, 2003 4:32 pm

Of course, that practice just fuels a bad loop as people who you might want look and see that the people who are more qualified than they aren't getting jobs, so they look below their capacity as well. Eventually someone has to give and more likely than not companies will settle for seriously underqualified people rather than hire one with a bit more experience than they want.

Daki · Post by **Daki** » Thu Aug 07, 2003 4:54 pm

Just from my personal experience with the situation...

In the long run, taking someone who is under-qualified but is capable of learning new technology and the like works much better than taking someone overqualified. Several reasons:

1. There is a tendency to build more loyalty with the under-qualified person because they see you are taking them for more than just their experience and training them to get better.

2. You avoid a situation where an over-qualified person will leave the moment a better position comes along (and I have seen this several times in my career with the most recent being 3 months ago).