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The HR Doctor Is
Dear HR Doctor,
concerned that our county doesn't do much at all when hiring new employees
to check references and credentials. Are my worries about liabilities
Sleepless - not in Seattle
Thank you for the question. The
short answer is a resounding "yes." County employees are the stewards of
the public trust in a great many ways. Many in county service have the
authority and obligation to enforce laws, handle money, and make
recommendations or decisions which can have profound effects on the lives
of others. Paramedics, sheriff's deputies, firefighters, child protective
service workers - the list goes on and on - are only some of the examples.
These employees are agents of the county - they are the county when they
perform their work.
Relying only on a written exam or oral interview - or contacting only a
reference listed by the applicant such as their mother - doesn't pass the
"due diligence" test, which the HR Doctor believes county officials must
If we are hiring a new physician or nurse, don't we have the obligation
to validate the statements on the application or made verbally that the
candidate is a licensed practitioner? The HR Doctor believes the answer to
be "yes" - especially if the information is readily available. Imagine the
risks and harm a person could do if we hire them and they turn out to be
frauds? The liabilities from such "negligent hiring" can be as high as a
jury on a jetliner. Don't think that a public official, elected or
appointed, always escapes based on "sovereign immunity." That concept is
eroding in our society, varies from state to state and is subject to
changing judicial precedent.
There are also the effects of terrible publicity, and perhaps most
important of all, the great harm to a "client" of ours which can result
from the "law of unintended consequences" - the chain of events which
includes our failure to check the new school bus operator's driving record
before handing over the keys to the bus and the responsibility to
transport 40 children!
In many states, there are liability protections for employers providing
good faith reference check information, especially with specific candidate
Nonetheless, the review needs to reflect a balance between respect for
the individual's privacy and the important purpose served by the
background check. That is, the checks serve to validate the candidate's
qualifications and knowledge, skills, and abilities to perform public
service in an ethical manner and to exercise sound judgment in making
important public administration decisions.
Reference checks must not be used in a cavalier manner or in a manner
reflecting unlawful discrimination based upon gender, race, religion,
disability, sexual orientation or any other protected group criteria. The
maturity and discretion of the investigator are an important component in
the process. Investigators should be briefed and trained by the human
resources director prior to undertaking the investigation and must be
mindful of the organizational and, perhaps, personal liability which might
be involved in illegal or improper information-gathering or
Background checks are a very appropriate responsibility for human
resources (HR). HR staff is - or should be - better trained and more
sensitive to potential liabilities. However, ultimately, in most systems
the "appointing authority" - the director or chief involved - had better
be comfortable that the person being hired is who, or what he or she
claims to be.
Finally, the HR Doctor issues the following BOLO - "be on the lookout."
Don't unleash an immature background investigator on applicants if the
investigator uses a McCarthy-style witch hunt or makes recommendations
based on the applicant's gender, race, religion, etc. Those involved in
"professional standards" investigation need very high standards
THE HR DOCTOR
P.S. - Don't lose sleep. Start acting to change the situation. It's
more restful when you know you are not "walking by" a problem which can be
(The HR Doctor was written by Phil Rosenberg, director of
Human Resources, Broward County, Fla.)
How do you pass the due diligence
Answer: Pay attention to the need for background and reference
verifications for all new hires. Yes, it does cost money and requires
staff training. Yes, ironically, if it is done poorly or with unnecessary
invasion of a person's privacy there could be liability there, too.
However, doing nothing isn't the answer.
Here some HR Doctor tips to make the process more complete:
__ 1. You should review Motor Vehicle Administration records for
the identification of any driving-related violations or areas of concern,
such as expired registrations or suspended licenses if vehicle operation
is required on the job.
__ 2. Local, state and national agency criminal history checks
will help identify job-related convictions (i.e., not arrests) and can be
compared to the candidate's answer to a question on most application forms
about previous conviction.
__ 3. Don't forget to conduct a local agency criminal history
check in other jurisdictions where the candidate currently works or has
worked in the recent past. How far back the check should be done is a
subject which should involve consultation with the human resources
director. However, jurisdictions in which the individual lived and worked
for the past five years, at least, would be appropriate.
__ 4. One overlooked resource - a content analysis of the local
newspaper in the area in which the individual worked. Such a search can
identify areas of press coverage that may suggest follow-up work. This
could be a great source of collaboration with the county librarian. In the
HR Doctor's experience, professional librarians are very happy to help and
very capable of managing this responsibility.
__ 5. You should contact the appointing authority in each
jurisdiction where the individual has worked, especially in a public
agency. Verify the basics of the applicant's past employment such as
salary, dates of employment and what the record shows as the reason for
separation, if the person is no longer employed.
Ask the appointed authority if a background investigation/reference
check was done when the person was hired. Ask for qualitative information
such as the performance evaluation history, whether any disciplinary
actions or commendations are in the person's file. In some states,
personnel files are open for public inspection.
__ 6. In addition to the appointing authority, contact the human
resources director of the agency, or depending upon the position, other
officials who may be knowledgeable about the work effectiveness, ethical
behavior and work habits of the individual. These might include the city
or county attorney, chief of police, finance director, auditor and
__ 7. Education: The reviewer should contact all colleges,
universities, technical schools and specialized training institutions
listed on the resume and application and speak with an official in the
registrar's office. You need to verify that the candidate has the degree
or the college attendance they claim to have. Depending on the nature of
the position, the reviewer may also contact the high school to verify
graduation, especially if high school is reportedly the last educational
achievement of the candidate.
__ 8. Professional licensure: You should contact the appropriate
licensing agency, usually an arm of the state government or an
organization such as a bar association, or a medical association to
validate any professional licensure claimed by the candidate.
__ 9. From these initial contacts, develop secondary and
tertiary contact names which should be followed up, at least to the
secondary level by the reviewer.
__ 10. Depending on the position, a review of credit history
should be done. Be mindful of new restrictions on use of credit reports
which took effect on Oct. 1. Get a specific authorization from the
candidate to conduct the credit check. Advise the person if the credit
check information was the basis for any adverse decision.
__ 11. Depending on the position, an on-site visit to one or
more of the most significant past employment areas identified by the
individual would permit the reviewer to do a far more consistent and
in-depth consideration of the candidate's qualifications. However, the
time and expense need to be balanced against information derived from
other areas of the inquiry.
__ 12. Additional follow-up in other areas will be suggested by
a review of the outcome of the inquiries described above. A plan for such
follow-up should be developed in consultation with the director of human
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