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Introduction to International Screening

by Lester S. Rosen

Employers have long recognized that conducting due diligence on new hires is a mission critical task. Firms cannot afford to be sidetracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers can be the subject of lawsuits for negligent hiring if they hire someone that they should have known, through the exercise of due diligence, was dangerous, unfit or unqualified.

However, with the mobility of workers across international borders it is no longer adequate to conduct these checks just in the United States. A 2000 government study shows that 11.5% of the population consists of immigrants. In addition, an increasing number of workers have spent part of their professional career abroad. The number of countries from which employers seek additional information about applicants is expansive, and includes India, China, Philippines, France, Germany, Russia, Brazil, Mexico, Australia, Japan, Canada, among others.

International Background Screening Perceived As Difficult
Because of the perceived difficulty in performing international employment screening, some employers have not attempted to verify international credentials or to perform foreign criminal checks. However, the mere fact that information may be more difficult to obtain from outside of the U.S. does not relieve an employer from their due diligence obligation.

Nor can employers simply assume that the U.S. government has conducted background checks if the worker was issued a visa. After the events of 9/11, the U.S. has increased checks on foreign visitors and on workers on government "watch lists." However, the government checks are generally not aimed at verifying a credential or checking for criminal records for employment purposes.

To exercise due diligence in hiring, employers should consider screening internationally for criminal records, employment, education, and publicly available terrorist lists.

Criminal Records
When it comes to criminal records, each and every country is completely different. The availability of public records that is taken for granted here in the United States is often times not available abroad. In some countries, records are available at the courthouse, similar to how criminal records are obtained in the US. In other countries, records can be obtained from a police agency. In some countries, the best course is to have the applicant obtain their own certificate of good conduct from their local police station.

For criminal records searches, it is important to know exactly where the person has lived to ensure you are searching the appropriate court. Keep in mind also that that turnaround time for international criminal searches takes longer than domestic searches. Different countries also have different rules on the level of searches, but in most countries it is possible to obtain information of offenses that are at the felony level.

Another concern is name variations. Many countries have naming convention that is different then the US, such as the use of the mother's name. Complications can also arise for applicants whose name is based on a non-English alphabet, such as Chinese, Arabic or Japanese. There are numerous ways that such names can be translated into English.

Privacy and data protection is another crucial issue. For example, the European Union has passed strong privacy rules affecting how personal data can be obtained and utilized. U.S. background firms that do international searches should be a member of the U.S. Department of Commerce Safe Harbor program, which demonstrates a commitment to the E.U. privacy and data protection rules.

Education
Verification of an educational degree earned abroad is critical to verify credentials and to avoid fraud. An employer needs to determine if an applicant in fact attended the school claimed and received the degree claimed. Statistics show that education fraud can run as high as 20%. The employer also needs to determine if the school is accredited and authentic. The world is awash with phony schools and worthless diplomas. If the employer is not familiar with a school, they should conduct their own research. A legitimate school will often have an e-mail address or phone number so that they can be contacted to verify a degree.

Employment
Foreign employment can also be verified by contacting the employer even though they are in a foreign country. Often such calls will be made in the middle of the night due to time differences. The critical step is to obtain as much information about the past employer as possible from the applicant. If the employer does not speak English, an interpreter may be needed.

Terrorist Lists
Other due diligence tools are the various terrorist databases available to the public, such as the Office of Foreign Assets Control ("OFAC") list maintained by the U.S. Department of the Treasury. Such lists are readily available but there are limitations as well, such as working with name matches only when no additional details are available. To locate a list of web sites containing publicly available lists, and for more information on international background checks, go to: www.esrcheck.com/international.php.

Lester S. Rosen is an attorney at law and President of Employment Screening Resources (www.ESRcheck.com), a national background screening company headquartered in Novato, California. He is the author of, The Safe Hiring Manual--Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace (512 pages-Facts on Demand Press), the first comprehensive book on employment screening. He is a frequent speaker nationwide on pre-employment screening and safe hiring issues. He was the first co-chairman of the National Association of Professional Background Screeners (NAPBS), the organization for the background screening industry.

Ten Safe Hiring Tools

By Les Rosen
President of Employment Screening Resources.

When recruiters, hiring managers or human resources professionals need to fill a position, its not enough to simply look for the proper skills set, experience or a good fit. Employers must also determine if there are reasons not to hire the candidate. It is estimated that 10% of job applicants have criminal convictions, and up to one-third of resumes contain serious falsehoods or omissions. Without taking some measure to ensure safe hiring, it is a statistical certainty that a firm will make costly hiring mistakes.

Fortunately for employers, there are ten evaluation tools that can be used immediately at no cost. These techniques protect a firm, yet do not discourage good applicants, who also are anxious to work with qualified co-workers in a safe and profitable environment. Here are the tools:

Have each job applicant sign a consent form for a background check, including a check for criminal records, past employment and education. Announcing that your firm checks backgrounds may discourage applicants with something to hide, and encourage applicants to be truthful and honest about mistakes they have made in the past.
Employment applications should ask about criminal records in the broadest possible terms allowed by law, and should not be limited to felonies.
Towards the end of an interview, advise applicants that the firm will perform a criminal background and reference check as a standard business practice, and ask whether the applicant has any concerns to share. Good applicants will shrug off the question, while applicants with a problem may either reveal something or withdraw.
Applicants should also be asked during an interview what they think a former employer will say about them. For example, "If we were to contact past employers, how would they describe your job performance?" Since the applicant has signed a release and has been told such checks may occur, they may be more motivated to reveal information about past jobs.
Applications must clearly state that any false or misleading statements or material omissions are grounds to terminate the hiring process or employment, regardless of when discovered. This is particularly important if a criminal record is found. Under current law, a criminal record may not be used to automatically disqualify an applicant unless there is a sound business reason. However, if an applicant has lied about a criminal matter, the falsehood can be the basis for an adverse decision.
If employment begins before a background check is completed, state in writing that employment is conditioned upon a background report that is satisfactory to the employer.
Verifying past employment is probably the single most important tool for an employer. Generally speaking, past job performance can be an important predictor of future success. Some employers make a costly mistake by not checking past employment because past employers may not give detailed information. However, even verification of dates of employment and job title is critical because an employer must be concerned about unexplained gaps in the employment history. Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag. It is also important to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense. Finally, documenting an attempt to obtain references can demonstrate due diligence.
Obtain a listing of all past addresses for seven to ten years. This is also needed for a criminal search.
Include future screenings in the consent language. This becomes important if a future investigation is required for some form of workplace misconduct.
Check for criminal records. Since criminal records are public information, employers can check at the local courthouse. An employer may consider convictions or cases currently pending, but not arrests. Also, certain cases may not be legally used for employment decisions. There are services that can obtain such information from courthouses all over the United States, as well as provide other assistance.