Читать книгу Creating and Updating an Employee Policy Manual: Policies for Your Practice - American Dental Association - Страница 32

Now that you have conducted interviews with the applicants, you’ll want to check the backgrounds of the best candidates. This is one part of the hiring process that should not be overlooked. Why? Just because an applicant has worked for another reputable employer doesn’t mean that the applicant is an appropriate hire for your practice.

Do not needlessly risk a lawsuit that could bankrupt your practice by failing to perform a thorough background check. Both your personal and financial security may depend on it. Since employers are responsible for their employees’ actions on the job, failure to investigate references can expose employers to liability for negligent hiring. In addition, background checks may decrease the likelihood of discipline problems and workplace violence.

Moreover, background checks may help protect your practice from liability under privacy data security laws such as HIPAA and state laws that protect personally identifiable information such as credit card numbers, social security numbers, driver’s license numbers, and account numbers from inappropriate uses and disclosures.

Examples of some of the more typical background resources include the applicant’s former employers, educational institutions, governmental sources, consumer credit agencies, Internet databases and personal references. Many employers choose to use professional background check companies because of their expertise and convenience. Using a background check company instead of performing the check yourself can also prevent you from inadvertently obtaining sensitive information that could expose you to liability.

For example, an employer who conducts an Internet search on an applicant as part of a background check may obtain information about the applicant’s religious affiliation, disability status, or other categories protected by discrimination laws. Moreover, you may wish to outsource this function because doing a thorough background check takes time.

Previous employers can be an invaluable source of information regarding a job applicant. However, bear in mind that some former employers will only provide the very basic of information about a past employee in order to minimize the risk of a lawsuit. In such cases, it may be possible to request that the applicant provide copies or his or her performance evaluations.

As a courtesy to the former employer, a reference check should be brief. Remember, you’re taking time away from the day-to-day tasks of their business to obtain your reference.

Do not needlessly risk a lawsuit that could bankrupt your practice by failing to perform a thorough background check. Both your personal and financial security may depend on it.

General guidelines that can help you with questions to ask during a reference check are listed in this chapter. In addition, see figure 1.16 for a customizable reference check worksheet:

• Call at least three references

• Confirm employment history, dates, titles and salaries

• Ask questions about the person’s qualifications and performance

• Ask what it was like to work with this person

• Ask if there were any work problems associated with the person

• Ask the former employer if they would hire this person again

• Ask the former employer if they would hire this person to fill “X” position

• Remember, family and friends are not considered objective references

Former employers and schools may choose to only give job-related information about the applicant. Moreover, they cannot provide information irrelevant to the hiring process, such as gender, race, age, disabilities, medical records, or drug test results, and asking for such information could expose you to liability for discrimination.

As protection against possible later discrimination or invasion of privacy suits, consider using a release of information waiver (see Figure 1.17), or a statement on your employment application, by which the applicant authorizes former employers or schools to release information on their past work experiences.

Depending on the law of your state, public records and employment-screening companies may be able to provide information on the following areas:

• Consumer credit report (to check identity information and bankruptcy)

• Criminal records (to check employee theft and drug-related convictions)

• Driving records (to check identity information and driving-related convictions)

• Educational records (to check college degrees)

• Federal, state and local court records (to check civil, criminal and bankruptcy cases)

• Past employment (to confirm job history and check work habits)

• Sexual offenders indices

Consult with your attorney before accessing public records concerning a job candidate, due to federal law requirements and variances among state laws. For example, some states prohibit employers from obtaining a credit report for employment purposes with certain exceptions, such as in cases where a candidate’s creditworthiness is substantially related to the job.

Dentists must keep in mind that they do not possess an unfettered right to investigate all aspects of an applicant’s criminal background. For instance, the Equal Employment Opportunity Commission (EEOC) prohibits an employer from automatically disqualifying an applicant because of a prior conviction. Rather, in determining whether to reject an applicant based on a conviction, the EEOC recommends that the employer take into account:

• the nature and gravity of the offense

• the time that has passed since the conviction or the completion of the sentence

• the nature of the job for which the applicant has applied

Additionally, some states limit employers from inquiring into arrests at all or convictions that occurred well into the past. Other states only allow employers to consider convictions if the crimes are relevant to the position at issue. Accordingly, because state law varies widely regarding whether an employer can investigate the possible arrests and convictions of a prospective employee, a dentist should consult with an attorney or the dentist’s state Department of Labor before inquiring into an applicant’s criminal background.

A dentist who hires a third party to perform background checks on prospective employees should also be mindful of the Fair Credit Reporting Act (FCRA). The FCRA imposes various requirements on employers who rely on “consumer reporting agencies” to conduct background investigations in connection with prospective employees. The term “consumer reporting agency” is defined quite broadly, such that any dentist who hires a third party (e.g., private detective, employment screening company, online data broker, etc.) to investigate an applicant’s background will be subject to the terms of the statute. First, the dentist must provide the prospective employee with a notice that the dentist is seeking a background report concerning the individual. This notice must be in writing, clear and conspicuous, and in a document that solely consists of the disclosure.

Second, the dentist must obtain the written authorization of the individual prior to seeking the background check. This authorization may be included in the employment application itself. The dentist must certify to the reporting agency the permissible purpose for the report, and certify that the report will not be used for any other purpose. If the applicant refuses to consent to a reasonable request for information, some jurisdictions may allow the dentist legally to decide not to hire the person on that ground.

The dentist must obtain the written authorization of the individual prior to seeking the background check. This authorization may be included in the employment application itself.

The FCRA requires the employer to notify the applicant of any adverse action (such as a denial of employment) that is based at least in part on the agency’s report. The notification must contain certain required provisions, such as:

• The name, address, and telephone number of the agency (including a toll-free telephone number, if it is a nationwide agency) that provided the report

• A statement that the agency did not make the adverse decision and is not able to explain why the decision was made

• A statement setting forth the consumer’s right to obtain a free disclosure of the consumer’s file from the agency if the consumer makes a request within 60 days

• A statement setting forth the consumer’s right to dispute directly with the agency the accuracy or completeness of any information provided by the CRA

States may impose requirements in addition to the FCRA.

Thus, dentists should give serious thought to performing background checks on their prospective employees. While the scope and detail of the background check may vary depending on the position to be filled, background checks may help dentists minimize or avoid liability for claims of negligent hiring. Background checks may similarly curb instances of theft and workplace violence. However, because federal and state law governs the procedures and scope of background checks, a dentist should consult with an experienced employment law attorney before undertaking this process.

FIGURE 1.16 SAMPLE REFERENCE CHECK WORKSHEET

FIGURE 1.17 SAMPLE INFORMATION RELEASE WAIVER AND INDEMNITY