Pre-Employment Background Checks

Hiring a staff member is an important step for any company, but it may also seem like a daunting task. The task includes steps such as seeking applicants, reviewing applications, narrowing down the pool of candidates, interviewing potential candidates, and making a final hiring decision.

Before extending the employment offer to a potential new employee, there’s one other step — a pre-employment background check.

“It’s an integral component of the employment process. It’s especially critical for companies that deal with sensitive information,” said Marion Niglio Kanenson, founder of Kanenson PI LLC, Harrisburg. Kanenson is a professionally licensed private investigator specializing in background checks.

While the majority of large companies already incorporate background checks into their hiring process, she said it’s also important for small companies to include it as well.

“Unless you check, there’s no way of knowing if the information they provided on the application is correct,” she said. “Additionally, even though there is a lot of information available on the internet, not all that information is accurate.”

Employers who do not conduct a background check may be at risk for malicious employee fraud, whether it be theft of inventory, a cybercrime, or stealing confidential data. Kanenson also said it’s important to ensure a safe workplace for employees and to reduce the risk of workplace violence.

She pointed out that an employer does have a liability for incidents caused by the employee. According to the Society for Human Resource Management, “under the doctrine of negligent hiring, an employer is liable for harm its employees inflict on third parties when the employer knew or should have known of the employee’s potential risk to cause harm or if the risk would have been discovered by a reasonable investigation.”

Kanenson said using an investigative service can be helpful for small companies, which often don’t have a human resources department, as well as large companies that do have a dedicated human resources department. She said investigators have access to a variety of databases that most people don’t. Those databases include criminal records, educational history, social media profiles, driving records, and identity verification — items such as name, address, date of birth, and Social Security number.

An employer may seek to check different types of information, depending on the position they are seeking to fill. For instance, a company seeking to hire a delivery driver may want to include a check of driving records. It’s important to comply with EEOC (Equal Employment Opportunity Commission) standards and treat all applicants for the same position equally.

According to the EEOC website, “it’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).”

There are also some state laws that apply. Pennsylvania instituted a Ban the Box policy in 2017 that removed the criminal history checkbox from all public-sector or non-civil-service-job applications. 

“The idea is to help those with a criminal background receive a fair chance at finding work,” Kanenson said.

Certain cities, like Philadelphia, instituted tougher versions of this policy. If you are applying for a job in Pennsylvania, particularly in Philadelphia, you may not need to disclose your criminal history. It is unlawful in Philadelphia for most employers to ask about your criminal background during the job-application process. 

Kanenson said in Philadelphia, employers can still run a criminal background check, but only after making a conditional offer of employment.

In some instances, an investigation into a potential employee’s credit history may be warranted. She cautions that this must be done in compliance with the Fair Credit Reporting Act. It requires employers to comply with certain regulations to ensure the background-check process is done fairly. Employers must get a written release from applicants and employees and let them know that the information found may be used in its decision about their employment.

Like the Ban the Box policy, the Clean Slate Law (Pennsylvania Act 56 of 2018) is designed to give those with a criminal history a second chance. This law seals arrests that did not result in convictions within 60 days, summary convictions after 10 years, and some second- and third-degree misdemeanor convictions if there are no subsequent convictions for a period of 10 years after the time of conviction. Certain first-degree misdemeanors can be sealed by petition.

Kanenson said although records are sealed, they may be accessed by law enforcement agencies or employers who are required to consider such records by federal law or employers who utilize FBI background checks.

“The potential impact of Clean Slate is somewhat limited — most employers don’t consider convictions older than 10 years,” she said.

Kanenson said pre-employment background checks should be conducted not just on traditional employees, but also on contract or freelance workers — also known as “gig workers.”

“Today, many employers are outsourcing jobs. Using gig workers, such as independent contractors or freelancers, can help reduce the bottom line, since employers don’t pay these workers benefits,” Kanenson explained.

She said even if a company gets a huge influx of gig workers, they still need to do their due diligence. She also recommends that a contract be signed between a gig worker and the employer for all parties to be held legally responsible.

“A pre-employment background check is an investment in your company,” Kanenson said.