Featuring Rotarian Dick Olenych

Background checks rising

By Mary Worrell, Inside Business - Hampton Roads, 11/19/2007

Employers ask many questions during the hiring process, but an increasing number are asking applicants to submit to pre-employment screenings, which often include criminal background checks.

ADP Employer Services, a division of Automatic Data Processing, a New Jersey company that handles outsourced human resource, benefits and payroll administration, has seen the number of background check requests quadruple across its client base in the last 10 years, according to its annual ADP Pre-Employment Screening Index released in March. Last year alone the company conducted more than 5.8 million background checks, a 20 percent increase over the previous year.

In Hampton Roads, there’s been a recent flurry of interest in the topic with the case of Alphonso Albert, a felon who served time years ago and was recently tapped by Norfolk’s city manager to fill a $98,500 post. He resigned from city service last week.

Dick Olenych owns Spectrum Printing, a printer in Virginia Beach. When he bought the print shop a few years ago, he was a new business owner and didn’t have many of the hiring practices he has in place now.

“I always call references, because I’ve been burned in the past,” Olenych said. “I hadn’t done a background check and a salesperson was forging documents.”

Olenych said the situation cost his company reputation and revenue, but he learned a lesson and decided to start investigating each applicant.

“One thing I look for is a reference who has known this person forever – people who will be character references,” Olenych said. “And I just began looking at Virginia court records.”

Olenych said sometimes it depends on the job for which a person is applying and the functions within that job. For example, Olenych looks at driving records for his drivers.

“I believe in giving everyone a chance,” Olenych said. “But if someone has been given five chances, I don’t want to be the sixth.”

Employers have to tread lightly when it comes to conducting background checks on potential employees and treat all potential applicants with the same level of scrutiny to avoid the risk of discrimination lawsuits, according to Burt H. Whitt, chairman of the labor and employment law section at the Norfolk-based law firm Kaufman and Canoles.

“You can ask questions, but you need to make sure you’re asking everyone the same questions,” Whitt said.

Employers can go it alone when investigating the background of an applicant, like Olenych, or the employer can pay a vendor to conduct the investigation. Whitt said employers must comply with the Fair Credit Reporting Act, which includes obtaining written consent from the applicant.

“You need to be conspicuous and you need consent,” he said.

Business owners can obtain criminal history records checks through the Virginia State Police, as can individuals and other members of the general public; however, the request for search must be signed and notarized.

A select group of non-criminal justice entities are empowered to receive criminal record name searches without notarization, including hospital pharmacy employees, day care centers and adult home care facilities, among others, according to the commonwealth of Virginia’s Web site. Most positions dealing with children, the elderly and the disabled require background checks.

The number of background checks is on the rise for a variety of reasons, Whitt said, including increased cases of violence in the workplace and attempts by employers to decrease their liability.

“That’s even in the face of a risk of discrimination,” Whitt said. “Companies have many competing risks, but in most cases, negligent hire is a greater risk.”

Whitt said the number of cases of negligent hire and negligent retention is on the rise.

Negligent hire is a claim that the employer is liable for harm its employee causes to other employees or to members of the public he or she may encounter during employment if the employer should have known the employee was a risk. Negligent retention is keeping an employee on staff despite being aware of the risks or if the employee caused harm during his or her employment.

Conducting background checks is one way an employer can decrease his or her risk of being liable in negligent hire or retention cases.

For the applicant, however, revealing his or her background can be a one-way ticket to the “no” pile. Despite the risk, Lisa A. Bertini, an attorney with the Norfolk law firm Bertini O’Donnell and Jochens, said it’s best to make employers aware of your past

“I say get everything out in the open, because as soon as you lie to an employer, you’re stuck with that,” Bertini said. “As an employer myself, if someone comes clean about what I might find in a background check, I will give them lots of points for that.”

Bertini said she has clients with convictions that haunt them long after the fact.

“It will hinder them getting a job even if it’s very old,” she said.

She mentioned a client who still struggles with employers over a conviction that is more than 25 years old.

“In Virginia, employers have a lot of latitude,” Whitt said. “They can ask about convictions and arrests, whether or not they led to a conviction. However, they can’t ask about arrests that have been expunged.”

There is also no limit on how far back an employer in Virginia can look into an applicant’s past, whereas some states limit background checks to convictions in the last 10 or 15 years.

Bertini and Whitt warned that if you’re in the market for a job, you should request your own background check, just like a credit check, to ensure its accuracy.

“Something may be listed as a conviction even if it wasn’t,” Bertini said. “Often these kinds of things can be a mistake. Check it out before someone checks it out for you.”

The ADP Pre-Employment Screening Index for 2007 found that 41 percent of the checks performed revealed a difference in information between what the applicant provided and what the source reported, and 6 percent of the differences were received with negative remarks in regard to the applicant.

Olenych has instituted his own standard operating procedures, or SOPs, for hiring over the years. He admits that it can be difficult and time-consuming to be meticulous in hiring new employees.

“When you’re in a large corporation, SOPs are all handled by human resources,” Olenych said. “I am human resources.”

Large corporations, such as Virginia Beach-based Amerigroup Corp., subject all employees to a pre-employment screening process that includes a criminal background check, drug test and verification of employment, education and relevant licensures, according to its Web site.

Olenych has also instituted a 90-day probation period and multiple interviews in his hiring process.

“You have to have SOPs on everything, and then you tend not to make the same mistakes,” he said.

If an employer decides to reject an applicant based on something found in a background check, the employer must provide the applicant with a copy of the report and refer the applicant to the reporting agency, Whitt said.

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