Ride share safety is a topic that has been widely publicized on the heels of a series of incidents involving both passengers and drivers. Uber announced plans last year to enhance driver background checks, which presumably was intended to enhance passenger safety. It was surprising, therefore, when a recent CNN story shed some light on the enhanced process with this headline: “He’s accused of war crimes and torture. Uber and Lyft approved him to drive.”
That’s probably not the kind of publicity most companies want. The story offered insight into Uber’s “enhanced” background check process, which has drivers undergoing more frequent checks, It also shared that convicted drivers are disqualified, as are drivers charged with “serious offenses.”
Would you consider torture a “serious offense?” I’m guessing most of us would, so how did the driver clear the background screen? A loophole? The alleged war crimes weren’t criminal charges. They were outlined in a civil court case. The background check company used by Uber told the media that“…most employers don’t request background checks that include pending civil litigation…” which might imply that..Uber didn’t? If not, are they missing other “serious offenses?” Pending civil torture allegations are probably not going to turn up every day…but what about protective orders for domestic violence, or harassment or stalking injunctions? Those may not always appear in a criminal history search unless a violation is charged. This made me wonder how many other companies only request criminal records…and how many will continue to do so until something like this happens? I compare it with purchasing a piece of clothing that doesn’t quite fit. Wouldn’t you get it tailored if you needed it to fit correctly? If one of the goals of your background screen is to help prevent workplace violence, your requests should take into account what will help you meet that goal. In this case, if you’re looking for “serious offenses,” I’d consider torture, stalking, harassment or domestic abuse to be red flags when placed in the context of certain jobs. And I might not see those flags if all I requested was a standard criminal history. Note to companies asking just for criminal records: you might be missing something important. Could it be time to review your process?
According to Attorney David Gabor, an employment lawyer with The Wagner Law Group, checking both criminal and civil histories is reasonable if you don’t want to miss certain information. It may not be necessary for every company to do, he says. This supports my belief that companies should “know what they don’t know” before simply taking a one-size-fits-all approach to screenings. A background screen provider will, as they indicated, give you exactly what you request…but knowing what to request and how to interpret that information is really going to be up to you. Because laws vary, as do the needs of different industries, Attorney Gabor suggests using a carefully tailored background screen framework. He suggests starting with a comprehensive background check that pulls the right records to match your needs, which can then be screened to apply any automatic exclusions. Beyond the automatic exclusions (i.e. certain types of convictions that may disqualify individuals from employment in your specific industry) any borderline or questionable records may be clarified with follow-up questions. Those should be crafted to support a thorough decision-making process. In other words, cautions Attorney Gabor, with the exception of lawfully-determined automatic exclusions, records alone should not be used as a carte blanche for making hiring (or firing) decisions.
Background screening can be a complex process for employers… so using third party providers makes sense. Reviewing and revising your own process, however, can be key to minimizing all kinds of risks and help identify gaps in your hiring practices. Think about what can undermine your efforts to enhance workplace safety. Expert advice can be critical to navigating the complexities of tailoring a process to comply with legal and industry needs. Attorney Gabor suggests involving counsel early on and communicating throughout the process. From screening structure to facially neutral policy, recruiting, interviewing and decision-making, process, does your process avoid “behind the scenes” risks? Think about information privacy and disclosure requirements, documentation of your hiring process, even records retention….will they stand up to scrutiny? If not, might a review be in order before CNN calls for comment?