Episode 108: Why, When, and How to Perform Background Checks

On this episode of “What The Hell Just Happened?!”, CEDR CEO Paul Edwards sits down with Senior Solution Center Advisor Michelle Richard to discuss background checks with both new and existing employees. What do you do if another employee tells you they heard something bad about someone you just hired? Is it possible to put an existing employee through a background check? Can you, as a practice owner, be at fault for crimes an employee may commit if you never background checked them? Listen to learn how to best protect yourself, your business, and your patients or customers.
Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Michelle: Hi, Paul.

Paul: Hi, Michelle.

Michelle: How are you doing today?

Paul: I’m doing very good today.

Michelle: Awesome.

Paul: What the hell just happened? Tell me. Ask me.

Michelle: Oh, you know I’m going to tell you.

Paul: Yup.

Michelle: So, background checks.

Paul: Oh, okay.

Michelle: Background checks. Now, there’s a process for these.

Paul: You don’t need to do that.

Michelle: But I want to talk about the interesting aspects of background checks.

Paul: Okay, good.

Michelle: What to do? What to stay away from mainly though, right?

Paul: Okay.

Michelle: Want to keep you safe. But, let’s say, Paul, that an employee comes to you as a business owner and you just hired someone, okay?

Paul: Okay.

Michelle: And they say, “Hey, you know that person you just hired for the front desk, I heard that they have a criminal history.”

Paul: Okay. So, I’m the employer. I just hired someone and one of my other employees comes over and says, “I have some stuff I got to tell you.”

Michelle: Yup.

Paul: Okay.

Michelle: Yup. How do you handle that?

Paul: Well, okay. Oh, there’s so much guidance around this.

[Michelle laughs]

Michelle: There is. This is actually a situation that I just saw float through the Solution Center and it was a tricky one.

Paul: It comes through all the time. Okay, so look, I’m going to use two, I’m going to kind of use a cut and dry. I’m going to give everybody the kind of the dry version of this.

Michelle: Let’s go.

Paul: Alright. So, start with the dry version. Just talk about background checks, in general. First of all, please do them. I have stories. I have a lot of stories. It’s very common. I used to get this all the time. “Hey, Paul.” So, it’s in an email to me or a text or a phone call or message. “I hired this new person and I heard some stuff and I decided to do a quick background check on him and you won’t believe what I found out.” And, in one of these cases, we’re talking about someone who had embezzled hundreds of thousands of dollars from multiple practices…

Michelle: Oh boy.

Paul: …had gone to prison for it, had successfully brought a case before the state’s Supreme Court about their case on their own without an attorney.

[Michelle laughs]

Paul: And then ended up in another state, because they had been forbidden when they were on parole from ever, and they were actually in someone else’s office and they were still using their name…

Michelle: Wow.

Paul: …their own name… So, they would’ve, if anybody had done a background check, that would have been discoverable.

Michelle: Oh, definitely and that’s why it’s important, right?

Paul: So, do a background check. 

[Michelle laughs]

Paul: Alright. So, in background checks, you can background check for all kinds of different things, right? 

Michelle: Yeah!

Paul: So, we’re still on the kind of dry thing. When someone gets hired, you can check for criminal history. By the way, there is no national database but there can be a national search by a company that does background checks. So, that’s our next thing, I guess, right, Michelle? Use a company, don’t do it yourself.

Michelle: Exactly. Ooh, that’s a fun one. We could go on a tangent all day about one, right?

Paul: We’ll get back to it.

Michelle: We will.

Paul: We’ll get back to it.

Michelle: Because that’s a very good point but, really, this boiled down to when to do it. Are you objectively basing, you know, your action?

Paul: Yeah.

Michelle: Are you being consistent with your action?

Paul: Yeah.

Michelle: There’s a lot of questions that we’re going to ask someone in that situation.

Paul: Right.

Michelle: I’m not going to walk through all the detailed guidance I gave this individual but we need to talk about those basics, right Paul?

Paul: Part of the part of the problem was is they’re already hired. So, you presented a new, they gave us a new twist. And it’s much more difficult to run a background check after someone… to do it legally…

Michelle: Yes.

Paul: …after someone has started working for you.

Michelle: Exactly. There are very objective reasons to run a background check on someone that’s already working for you. Like, maybe they’re moving from front desk to a different position that now has… they have more responsibilities.

Paul: Access to other records. They’ve got access to financials or stuff like that, you might background check them at that point.

Michelle: Yeah, but those are far few in between. So, really where what you want to do here is you want to avoid… you want to avoid that situation by running the background check. When?

Paul: When? Oh my goodness. 

Michelle: We’re in sync here. Yeah. You want to do it after you’ve offered them.

Paul: Yeah.

Michelle: After you’ve formally offered them. And ideally you want the results before they start.

Paul: Yup.

Michelle: That’s going to be the ideal world. We understand not all situations are ideal.

Paul: Well, it’s a problem. Especially with, we still have a Covid hangover and so background checks are dependent on counties replying back.

Michelle: Yep.

Paul: And so sometimes counties are taking two and three and four months to reply back to our background check people.

Michelle: Oh, definitely. Definitely. So, you can have them start. But you want to make sure that they understand that their offer is conditioned upon successful passing of their background check. Otherwise, you may have to separate from them. So, well, you never hope for that, at least you’re in a good position as an employer to make a decision, a tough decision that you may or may not have to make depending on the results that you see.

Paul: Right. So, there are a lot of ways to think about this and use some different tools that are associated with the background check. So, one of the tools that I like to use is to say, ask someone, “What would your last employer and maybe your last couple of employers say about you?” And, you know, if you’re an employee, you know, you’re going to be like, “They loved me. I was fantastic,” and all those things.

Michelle: That’s what I would say.

Paul: That’s what I would say, actually. But, if you slide a piece of paper across the desk and say, “I need you to release them to speak freely to me,” you’re going to get this look like, “Well, there’s something I got to tell you…” 

[Michelle laughs]

Paul: “…I may or may not have thrown a laptop through the front window when I quit the last one, but I just want to say, let me explain it…” 

[Both laugh]

Paul: So, look, the threat of a background check is a great way to make someone who’s not been doing good things in their past that want to not do good things in their present within your practice is generally going to run those kinds of people off.

Michelle: Yep.

Paul: Now, there are a lot of psychopaths out there who have stolen, gotten caught, didn’t get convicted because the practice didn’t want to convict them, didn’t want to do it. And everybody knows they did it, or maybe they got arrested and it’s in the public record. There are many psychopaths who will go back and try and do it again. So, it’s not, I just didn’t want to give everybody the impression that the threat of a background check would run off people who might steal from you.

Michelle: Yeah. I mean, there’s a world out there and there’s different kinds of people and you just want to control what you can control and the process is one of those things. 

Paul: Right.

Michelle: Now, let’s go back to…

Paul: Okay.

Michelle: …the what we were kind of going to, we’re tempted to get into a little earlier and that’s, “Can I just Google them? Can I investigate on my own or, what can I do, Paul?”

Paul: Well, I used to tell you guys, “Just don’t.” But I recognize that you’re doing it. I know you’re doing it. But you’re not supposed to use what you found. And there are particular pieces of information that you might pick up. There’s a couple of problems with Googling. Okay, one of them is accuracy. You may have the first and last name right and it may even look like your person or there’s no picture at all and you just assume that this person who you just read about who’s a bad person and the person who you’ve hired are one and the same and you could be very, very wrong.

Michelle: Yup.

Paul: Okay? The other thing is that, in order to be able to gain accurate information from the record and to be able to use it in your hiring or a firing decision (in this case), the employee has to give you permission to access that information. It’s particularly around financials and items like that. They have to actually give you…they have to give the background check company permission so they can give the people who are holding that information, the employee’s permission…

[Michelle laughs]

Paul: …so that it can then be released into the record and it can be reported. And then, if you follow all those things and you learn something… Okay, so we’re not on Google anymore. We’ve done it through the official channel and we’re going to use something we learned adversel, in other words, we’re not going to offer you the job. We have to tell you we’re not going to offer you the job, why we’re not going to offer it, what we found, and give you an opportunity to refute that. Which is typically, “Hey, that’s not me,” or “That was expunged from my record. It was something that happened nine years ago. It wasn’t even supposed to be reported,” and then, technically, you’re not supposed to use it. Now, Michelle, when you Google, you’re underneath the same rules.

Michelle: Yes.

Paul: So, you know, you’re in your basement and you’re Googling…

[Michelle laughs]

Paul: …and you find something and you use it in your head not to hire them, you’re supposed to tell them.

Michelle: Yep. And there’s federal laws, there’s state laws that restrict what information you can and cannot consider, may or may not consider. So, to piggyback off of what you’re saying, when you go through a company and information is presented to you that you’re a little concerned about, you want to ask yourself one very important question. This is all over our resources, Paul: Is it directly related to their job?

Paul: Right.

Michelle: So, is it a DUI from five years ago? They never drive for you. Well, it’s probably not going to be related and you really shouldn’t consider that. Now, we understand that there are different…

Paul: Was it four DUIs?

Michelle: Mhmm. Was a repeated mistake?

Paul: Now I might be able to make a different decision.

Michelle: And, really, it’s still your call. It’s still your call as an employer, but that question’s important to help you begin to determine, “What am I going to do next?”

Paul: Right.

Michelle: Yup. And, what you were saying, Paul, just to kind of throw something in there about where this comes from. It’s the Fair Credit Reporting Act, the consent that the employee needs to give or the applicant needs to give for you to be able to run that. So, it’s all these laws, why you want to work with a professional organization, a third party to help you facilitate these in a safe manner and protect your business and your employees.

Paul: Yup.

Michelle: And your patients.

Paul: Yup, absolutely. So, to wrap this up, I have dozens of stories off the top of my head and hundreds in our database of people not, of our members, not running a background check and then getting bit in the rear end over it. Because what… the problem was discoverable.

Michelle: Yes.

Paul: The habitual drug use; the being convicted for a felony; the embezzlement from another practice. The pedophiles. I mean I can just keep going over and over and over and over again, and then I want to add this. Because this is not a high-note sort of conversation that we’re having here. When you run a legitimate background check through an official organization that knows what they’re doing, you are giving yourself some cushion there. You are protecting yourself. Because if they looked and they couldn’t find it and then all of a sudden it comes to light once this person’s working in your practice, then your defense is, “I tried. I made every attempt to discover this. Had I known that I wouldn’t have hired this pedophile who’s now working with children at my pediatric practice. I’m certainly firing them now.” But it still gives you some modicum of defense there because you made every effort. But, if you’re not background-checking people and someone comes in and starts stealing credit cards and money and everything else, you could be held personally responsible for those losses because you didn’t take even a reasonable step to discover it, so.

Michelle: Right, there we go.

Paul: Oh my gosh that felt like a lot of HR guidance.

Michelle: Oh yes.

Paul: But well What The Hell Just Happened in HR is…

[Michelle laughs]

Paul: …we just discovered we probably should have background-checked somebody and we didn’t and now, what can we do? So, I think I don’t have anything else on this.

Michelle: No, I think we hit all the high points.

Paul: We hit the high points. Are they high points?

[Paul laughs]

Michelle: Well, the important points.

Paul: Okay, Michelle. Thanks for bringing us down.

[Michelle laughs]

Michelle: You’re welcome. That’s my job.

[Michelle laughs]

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened?! Do Paul a favor: share this with your network. 

If you have an HR issue or a question you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives. 

Aug 23, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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