The HR Doctor Is In

Dear HR Doctor,
I'm concerned that our county doesn't do much at all when hiring new employees to check references and credentials. Are my worries about liabilities justified?

Thank you,

Sleepless - not in Seattle

Dear Sleepless,
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 pass.

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 authorization.

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 disclosure.

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 themselves!

Best wishes,

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 corrected.

(The HR Doctor was written by Phil Rosenberg, director of Human Resources, Broward County, Fla.)

How do you pass the due diligence test?

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 others.

__ 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 resources.