Recent high-profile events involving campus sexual misconduct and workplace violence have led to increased employee background screening, with many institutions requiring background checks of all new hires.

A background check, or background investigation, is the process of reviewing confidential and public information about a person. Information may be collected from many sources, including criminal records, motor vehicle records, credit history, sex offender registry, education history, and work history. For specific jobs, additional checks such as physical exams or drug and alcohol testing also may be included.

A 2019 benchmark report by HireRight found that background checks uncovered significant discrepancies and misrepresentations by candidates, primarily with respect to criminal convictions, but also with motor vehicle records, employment histories, and educational credentials. About 71% of organizations reported that background checks

uncovered issues they would not have known about otherwise. The report found that conducting background checks is a key risk mitigation strategy, as it improves the quality of hires and reduces organizational risk.

Background checks of candidates, employees, and certain non-employee groups is a crucial risk mitigation practice for educational institutions. Background checks protect community members and the institution’s resources. For example, in a lawsuit involving an IT employee who committed identity theft using student account information, a college was found responsible because it did not perform a background check that would have uncovered past fraud convictions. Of course, many individuals who commit bad acts do not have a prior criminal history. But where there is evidence of prior criminal behavior, the institution often will be held liable for not discovering it. Human resource administrators can use this publication to assess the soundness of their background check screening sources, practices, and policy.

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Risk Research Bulletin

Background Check Fundamentals

I. What Do Background Checks Entail? Background investigations range in scope. Institutions must carefully select the appropriate screenings, ensuring that the chosen checks comply with local and federal law and do not discriminate against applicants or employees. Background investigations may include checks or verification of the following records:

❚ State and federal criminal record databases

❚ Name/alias

❚ Social Security number (SSN) trace

❚ Residence history

❚ Current and prior employment

❚ Professional licensure

❚ Education

❚ State and federal sexual offender registries

❚ Child and elder abuse registries

❚ Reference checks

❚ Motor vehicle history

❚ Credit history

❚ Psychological and physical examinations

❚ Drug and alcohol testing

❚ Social media accounts and online presence

Limitations on Screening SourcesThe extent of background checks varies greatly and usually will depend on job function, legal requirements, and the institution’s baseline screening philosophy, as described in more detail later. No matter which screenings are included, institutions must be aware of legal limitations on some categories of checks.

❚ Sex offender registries: Several states prohibit the use of information obtained from sex offender registries; limited exceptions may apply to educational institutions. Institutions should confer with legal counsel to ensure compliance with local laws.

❚ Credit history: A growing number of states restrict employers from making employment decisions based on an applicant’s credit report, though many offer exceptions for specific job functions. Limitations vary, so state-specific guidance from an experienced attorney is critical.

❚ Medical exams and drug and alcohol testing: The Americans with Disabilities Act (ADA) requires a pending job offer before medical examinations are requested or conducted. Institutions should, after consultation with their attorney, review Equal Employment Opportunity Commission (EEOC) and ADA limitations on medical questions and examinations to determine if these inquiries are necessary. Additionally, institutions subject to the Drug-Free Workplace Act of 1988 should ensure that they adopt a drug-free workplace policy and establish a drug-free awareness program.

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❚ Social media searches: Institutions should use a third party for social media searches. These searches frequently reveal information that should not be considered, such as criminal history, information unrelated to the position’s job duties, or information about protected categories such as gender, race, age, religion, national origin, sexual orientation, gender identity, gender expression, disability, genetic information, and other categories protected under applicable state or other laws. The vendor can perform searches and notify the institution of any useful, questionable, or problematic information found. Using a vendor also helps avoid challenges associated with multiple online accounts with the same name, fake accounts, or similar problems.

Prohibited Screening SourcesSome categories of checks are not legally permissible to review. For example, institutions must not check or use the following information in employment decisions:

❚ Genetic information (including family medical history and results of genetic tests of the applicant or applicant’s relatives)

❚ Expunged records

❚ Non-conviction information (where an individual was arrested or charged with a crime but not convicted or found guilty)

❚ Criminal records that are restricted by federal, state, or local law

Be Cautious Using Criminal RecordsTo prevent discrimination, some local laws prohibit considering certain criminal records based on type, time, and scope. Criminal records and other information deemed negative can affect job prospects, often having a disproportionate impact on racial and ethnic minorities. Information taken out of context, especially with respect to old convictions, also can limit the ability of people with prior convictions to find employment. Institutions should consider only criminal history within the time and scope

Background check mistake1: On a team trip, a baseball coach provided a player alcohol and then assaulted him. The school’s background check uncovered a prior arrest for inappropriate actions with a minor. This arrest record should have triggered a deeper inquiry. The school faced liability for failing to act on the background check results.

1 “Background check mistakes” cited within this article are examples from actual United Educators (UE) claims.

permitted under the law and should consult with legal counsel to ensure compliance with local, state, and federal law, especially if the institution operates in multiple states.

Be Cautious Using Arrest RecordsSome states also prohibit employers from considering (and in some cases, even asking about) an applicant’s arrest record if the arrest did not lead to a conviction. Moreover, all institutions must heed EEOC guidance that an individual’s arrest record alone should not be used to take a negative employment action, though it may trigger a deeper inquiry into the underlying conduct. For more information, see the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.

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II. What Screening Is Appropriate?Establish a Baseline RequirementInstitutions should establish a minimum background check requirement for all new hires. Some states require educational institutions to conduct at least a criminal background check for new hires, but baseline requirements generally go further and frequently consist of:

❚ SSN verification

❚ Seven-year residence history review

❚ National Sexual Offender Registry check

❚ National criminal database review

❚ County felony and misdemeanor database search for the past seven years

Increasingly, institutions have adopted the best practice of extending the baseline requirement beyond employees to other individuals on campus, including volunteers, pre- and post-doctoral fellows, research associates, student workers, unpaid interns, and independent contractors. Some state laws require institutions to complete background checks on these individuals, depending on their role at the institution.

Examine Which Positions Need Heightened ScreeningBeyond the institution’s baseline requirement, conduct additional checks where heightened screening is necessary due to job role or local law. Perform a position-by-position analysis to determine where heightened screening is appropriate and which additional background information to check. Identify essential job requirements and determine whether specific offenses would demonstrate unfitness for the job, and whether any exceptions will be considered based on details of the offense. For example, the following job duties call for more extensive screening:

❚ Operation of motor vehicle or heavy equipment. Conduct motor vehicle record checks and drug and alcohol testing for individuals operating a vehicle or heavy equipment at any time, or those who are required to drive their personal cars to perform the duties of their position.

❚ Access to funds. Review credit or financial history of employees with direct access to or control over cash, checks, credit/debit card account information, or where the position authorizes an individual to transfer money or enter into financial contracts on behalf of the institution. Some state laws limit the use of credit reports in employment decisions, so check with experienced legal counsel to confirm your state’s restrictions.

❚ Access to weapons, master keys, and controlled substances. Require heightened background checks for positions with access to controlled substances, firearms, highly secure areas such as research facilities, or master keys for residences.

❚ Access to vulnerable individuals. Additional screening is imperative for jobs that may have unsupervised contact with minors and other vulnerable populations including the elderly, disabled, and medical patients. Check with experienced legal counsel to confirm your state’s requirements and include fingerprinting and a search of the sex offender registry and child and elder abuse databases if your state law allows.

❚ Senior leadership status. Consider a financial history check or other heightened screening for senior-level administrators and officers, even if their duties do not fall into the above categories, as their status confers significant power within the institution.

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❚ Government contracts. Institutions acting as government contractors may be subject to additional background check requirements. Review any government contracts for details and consult with legal counsel regarding such requirements.

Groups to Consider ScreeningIn addition to examining job duties to determine screening requirements, think about the following special groups and their unique considerations:

❚ Faculty. Institutions often exempt faculty members from background checks because of their status, worries about hiring delays, and concerns about dissuading applicants. Increasingly, however, institutions require faculty to undergo background checks and it is recommended that new faculty members be included in the institution’s baseline screening requirements. Additionally, depending on their job duties, some faculty will need heightened screening, including faculty involved in sensitive research areas or those teaching minors or first-year students. Some states may require institutions to conduct a background check if the faculty member may have direct and unmonitored contact with minors or other vulnerable populations, such as elderly or disabled individuals.

❚ Professional employees. Licensed professions including nursing, teaching, and social work may require background checks of both students and employees in those fields. Annual review of the state professional license requirements is recommended. Even if it is not mandated in your state, consider whether students and employees in these professions require heightened screening due to their access to vulnerable individuals or controlled substances.

Background check mistake: A volunteer reading tutor with a history of child abuse molested a kindergartner. The nonprofit organization that ran the tutoring program did not require a background check because it envisioned that classroom teachers would supervise tutors, but the school did not know about that expectation or about the lack of screening because it had no contract or memorandum of understanding with the tutoring program.

K-12 SCHOOLSK-12 schools should ensure that employees have criminal history and sexual offender registry checks as part of their background screening. Some states also may require child abuse and neglect registry checks as well as fingerprinting or other screenings. Schools should screen all personnel including administrators, bus drivers, cafeteria workers, custodial workers, athletic coaches, trip chaperones, dorm parents, camp and after-school counselors, groundskeepers, and those working at the school or with students in any other capacity.

If the school contracts with vendors to provide services such as dining, maintenance, transportation, or security, confirm that these individuals meet the same background requirements as employees. If the contractor obtains the background checks for its staff, have a process in place to confirm that the contractor meets all requirements.

Volunteers also may need screening. At a minimum, conduct background screening on all volunteers, including parent volunteers, who may spend unsupervised time with children. Carefully review volunteer duties, as some roles may involve occasional unsupervised time. Include these volunteers in the background investigations.

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❚ Certain current and former employees. Institutions often focus on background checks for new hires and forget to screen in the following employment situations:

Í Rehires who have not had a background check within the past year

Í Employees transferring into a new position with duties that require new or heightened screening

Í Employees needing an updated background check based on state law or the institution’s background check policy (for example, those who have had an extended period since the first check was conducted)

Í Employees needing a post-employment background check due to intervening events such as a workplace violence incident

❚ Independent contractors, temporary employees, and contract workers. The institution’s contracts with third-party companies or individuals must include specific background check provisions. Consider conducting these background investigations directly through the institution’s process rather than relying on the contractor’s assessment and compliance.

Background check mistake: A student alleged that the health center nurse negligently administered medications and stole them for personal use. The nurse’s background check included a review of criminal records but did not check the status of her nursing license. Though the nurse had no criminal history, the lawsuit uncovered that her license had previously been suspended for misconduct related to theft of narcotics.

Background check mistake: A group of longtime university employees underwent background checks after transferring to another department. One employee was fired when the background check revealed he had falsified his employment application years before. This was especially difficult because of the years of service and many relationships the employee had developed. The situation could have been avoided by screening all employees at the beginning of their employment.

Background check mistake: A temporary employee stole jewelry from faculty housing when working on a remodeling project. Although the institution’s policy required contractors to perform background checks on their employees, the institution never included the requirement in the remodeling company contract.

Background check mistake: A university hired a temporary employee without confirming that the agency conducted a proper background check. The employee accessed personnel records to harass his former girlfriend. She then sued, alleging that a proper background check would have revealed that he had violent past behavior that should have precluded his hire.

❚ Volunteers. To determine the appropriate level of background investigations for volunteers, review applicable laws and evaluate the volunteer positions using the same criteria as employee job duties, including motor vehicle operation and access to vulnerable individuals. For example, volunteers who may have contact with minors or other vulnerable populations should, at a minimum, undergo criminal history checks and sex offender registry checks.

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❚ Other affiliated personnel. Educational institutions have relationships with other individuals who may not qualify as a volunteer, contractor, or employee. Review these roles to determine when a background check requirement is appropriate. For example, institutions that arrange for international host families on exchange programs should require background screening of these individuals even if they do not receive monetary compensation. Similarly, when institutions set up internships or externships for students, it may be appropriate to require background checks of internship supervisors or job site mentors — especially if minors are involved.

❚ Employees subject to state requirements. Some state laws impose background check requirements on educational institutions or mandate screening for specific positions such as those working in camps, daycare, K-12 education, programs for elderly or disabled individuals, or colleges

Background check mistake: A high school set up an internship for a student without running a background check on her internship supervisor, failing to uncover that he was a convicted sex offender. He assaulted the student.

IMPORTANT CONSIDERATIONS BEFORE CONDUCTING BACKGROUND CHECKS

Check timing. Many local laws prohibit background checks until after a conditional offer of employment is made. In these jurisdictions, make a job offer contingent upon the successful completion of the background check. Consult with legal counsel to ensure compliance with the laws applicable to your institution.

Obtain proper authorization. Background checks performed by a consumer reporting agency or other vendor are subject to the federal Fair Credit Reporting Act (FCRA). Although the FCRA applies only to third-party providers, its requirements also are good practices for institutions conducting their own checks. The FCRA requires that the person whose background is checked be notified of the check and complete a pre-authorization release form. Comply with any applicable state law requiring institutions conducting their own checks to obtain a completed authorization or release form before conducting a background check through the state’s system. If an authorization or release form is required but the individual refuses to execute the form, remove that person from consideration (or revoke the employment offer if one was made).

Keep background information secure. Problems can result from background investigations conducted without following correct procedures or when the personal information obtained is improperly disclosed, whether accidentally or on purpose. Legal claims such as negligent hiring, invasion of privacy, defamation, and tortious interference with employment can arise from these mistakes. Careful handling of the background check results and using third-party vendors to conduct the checks can help avoid these claims. If your institution conducts its own background checks, follow the policy consistently and have only designated, well-trained individuals conduct the checks.

allowing high school students (usually minors) to dual enroll. Consult with legal counsel to ensure compliance with these and other applicable state laws.

❚ Students. Some higher education institutions include all students in their background check policies, though this is rare and must take into account that first-year students are sometimes minors. For more information about background checks of students, see UE’s blog Criminal Background Checks of Incoming Students.

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III. Use a Third-Party ProviderMost institutions rely on a third-party provider to conduct background checks due to the complexity of federal and state requirements. Using a qualified vendor does not absolve the institution of all liability related to background checks, but it significantly reduces the chance of mistakes and oversights. Ensure the background check vendor complies with legal requirements, uses databases with the highest standards for data accuracy, and has sufficient resources for checking county court records in addition to national or state databases.

It is especially important to use a vendor for international background checks, as they can be extremely complex since each country has different laws about the availability and privacy of criminal records, credit reports, and sex offender registries. Use a vendor that specializes in international background investigations to ensure compliance with country-specific laws. In some countries, background checks may be impossible, and vendors or legal counsel will be able to provide insight into any limitations.

Institutions should consult with the vendor or legal counsel to confirm compliance with any additional requirements once the background results are received. For example, data privacy requirements detailed in the General Data Protection Regulation apply to background investigations processed within the European Union. Additionally, if you are hiring the individual for a position outside of the United States, before any final employment decision is made, work with legal counsel to ensure compliance with any country-specific laws protecting the job applicant’s rights.

Background check mistake: A student studying abroad in Europe brought a lawsuit after she was assaulted by her host father. The exchange program did not investigate the backgrounds of its host families, and thus failed to uncover related misdemeanors on the host father’s record.

Background check mistake: An institution conducted its own criminal records check and then hired the applicant. However, the university did not realize the applicant had provided a false Social Security number and date of birth. A background check vendor’s processes would have revealed this discrepancy. Instead, the employee’s past fraud went undiscovered and she took thousands of dollars from students under false pretenses.

IV. Analyze the Results Carefully review information obtained from background checks. Many institutions have a designated background check review committee to assess the information obtained and ensure confidentiality. Train this committee to analyze the information, working with human resources and the hiring manager to understand the position and determine if any adverse information will impact an individual’s eligibility for employment. The committee should keep the specifics of any adverse information confidential so that the hiring manager remains unbiased.

Conduct an individualized assessment of results for each candidate based on the position requirements. EEOC guidance emphasizes that employers only may base an adverse decision on background information for a legitimate reason, and an individualized assessment allows for that analysis. During the individualized assessment, consider:

❚ The nature and severity of the uncovered offense or action

❚ Circumstances of any conviction, including whether violence was involved, and whether it represents a pattern of behavior

❚ Relevancy of the offense or action to the job responsibilities

❚ Elapsed time since the offense

Decide in advance what criminal convictions and time frame for those convictions are relevant for each position. Limit considerations to these predetermined criteria to ensure consistency of scope and approach among applicants.

Be Careful Not to DiscriminateTake particular care when basing employment decisions on background issues that may be more common among people of a certain race, color, national origin, sex, or religion; among those with a disability; or among people age 40 or older. The EEOC instructs that employers may

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not use a policy or practice that excludes or disadvantages a group with one of these protected characteristics and does not accurately predict who will be a responsible, reliable, or safe employee. (See the EEOC’s Guidance on Background Checks for more information.) Further, the EEOC states that employers should be prepared to make exceptions for problems revealed during a background check that were caused by a disability, where the individual can demonstrate his ability to do the job despite the uncovered background information (unless doing so would cause significant financial or operational difficulty).

Be Cautious When Taking an Adverse Employment ActionIf the institution plans to reject the candidate or take other adverse employment action as a result of the check, consult with legal counsel before acting. As noted above, though the FCRA applies only to third-party providers, its requirements are good practices for all employers — even institutions conducting their own checks. The FCRA requires sending a pre-adverse action notice to the candidate or employee, along with a summary of the individual’s rights under the FCRA and a copy of the background check or consumer report at issue. A waiting period of at least five days should follow so the individual has time to respond. The EEOC recommends discussing background check results with candidates and allowing them to explain any issues uncovered, especially regarding criminal record history. This is particularly important because inaccuracies are common and an individual may be able to identify or clarify them.

After discussing the information with the candidate, if the institution still plans to reject the candidate or take other adverse action, the FCRA requires the employer to send a post-adverse action notice to the candidate, with the name and contact information of the consumer reporting agency that issued the background check that is the basis for the decision. The letter must include a statement that the consumer reporting agency cannot provide reasons for the adverse action and a notification about accessing the background check.

V. Remain VigilantRemember that background checks, while an important risk prevention tool, cannot identify all bad actors. Indeed, many of the worst offenders have clean records due to their deceit and manipulation. Other times information cannot be discovered because it is inaccurate or missing, as is sometimes the case with licensing bodies that may handle complaints or misconduct inconsistently. Accordingly, institutions must remain attentive to boundary violations and other misconduct and focus on training the community about policies that keep the community and its resources safe.

Conclusion By identifying individuals who may harm your institution, background checks mitigate liability for negligence claims and reputational damage. Follow the above guidance and your institution can better ensure it makes careful, informed decisions about employees, contractors, volunteers, and other individuals affiliated with the school, without running afoul of the law.

AcknowledgementsThis publication was written by Christine McHugh, senior risk management counsel at UE. Special thanks to Miriam McKendall, a partner in the Boston office of Holland & Knight LLP and co-chair of the firm’s education team, for reviewing a draft.

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A carefully developed and consistently applied background check policy protects the campus community and the institution’s finances, property, data, and other assets. A written policy creates uniform standards that are fair and reliable, and should include the following elements:

✓ A statement that the institution’s practices will not disadvantage individuals based on race, national origin, or other protected characteristics

✓ Details about the types of positions and employment categories subject to background checks and when background checks will be conducted (new hires, promotions, etc.)

✓ A requirement that current employees must agree to background checks or be subject to disciplinary action, up to and including termination

✓ Information about the types of checks required for each job category

✓ A clear description about the process and points of contact for initiating a background investigation

✓ Information about the committee or individuals analyzing the background check results

✓ A statement that an individualized assessment of each background investigation will occur to evaluate the results

✓ A statement that criminal records will be checked only when relevant to the position, that the information will not be used to discriminate, and that the results will not automatically disqualify an individual from initial or continued employment

✓ Information about the FCRA or other state-specific requirements (if applicable)

✓ A requirement that all individuals subject to background checks self-disclose changes within a given time frame, including criminal convictions, restraining orders or custody removal orders involving child abuse or exploitation, and driver’s license suspensions or revocations

✓ Any state-specific provisions or requirements, especially where the institution operates in multiple states

✓ Information about data privacy, including recordkeeping and destruction

BACKGROUND CHECK POLICY ELEMENTS

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EduRiskTM Solutions provides education-specific risk management resources to colleges and schools, and is a benefit of membership with United Educators (UE) Insurance. As a member-owned company, UE is committed to helping educational institutions by offering stable pricing, targeted insurance coverage, extensive risk management resources, and exceptional claims handling.

To learn more, please visit UE.org.

The material appearing in this publication is presented for informational purposes and should not be considered legal advice or used as such.

Copyright © 2019 by United Educators Insurance, a Reciprocal Risk Retention Group. All rights reserved. Permission to post this document electronically or to reprint must be obtained from United Educators.

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More From United EducatorsWebinar: Background Checks — Risks and Best Practices

Criminal Background Checks of Incoming Students

Additional ResourcesGoucher College Background Check Policies

Dartmouth College Background Check Policy

The Ohio State University Background Check Policy

Vanderbilt University Contractor Background Check Policy

William Jewell College Nursing Program Background Check Policy

EEOC Guidance on Background Checks

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