In the past, hiring employees was based on an
application and a "gut feeling" on the part of the employer. In recent years,
however, the background check has become a staple in the employment process
for reasons including employee theft and applicants with a criminal history.
Because it is generally assumed that an employee's past is the best predictor
of his or her future behavior, background checks are considered necessary.
If all employees were completely honest, however,
the background check might not be required. But 33% of employees have admitted
to stealing a product or money from their employer within the last three years.
1 In fact, the U.S. Chamber of Commerce estimates that employee
dishonesty costs 1% to 2% of gross sales and that nearly a third of business
failures are directly related to employee theft.2
According to the U.S. Department of Justice (DOJ),
one in every 32 adults has a criminal record.3 Many individuals try
to hide a criminal past. In fact, 30% to 40% of all job applications and
resumes include some inaccurate information.4 These figures have
made employers more cautious about accepting an applicant's word at face value.
Since September 11, 2001, job candidates as well
as long-time employees are being examined from a new perspective. Hiring
without a background check is dangerous when attempting to preserve a safe
working environment. It is also problematic in terms of avoiding negligent
Pharmacy employees are not exempt from checks into
their professional and private lives. These checks should be conducted for all
levels of employment, including corporate executives, directors of pharmacy,
and staff pharmacists, as well as technicians and clerks. Background checks
are considered good business practice and a critical component of a quality
The Application and Interview
The background check is initiated when an individual completes an application
and/or submits a resume, enabling the interviewer to become familiar with the
applicant's work history. During their meeting, the interviewer engages the
applicant in a thorough discussion to verify the accuracy of this information.
While many questions are prohibited during an
interview because of their discriminatory nature, inquiring whether an
applicant has ever been arrested may be permitted, depending on state law. For
example, in California, an application may include "job-related questions
about convictions, except those that have been sealed, expunged, or
statutorily eradicated," but applications cannot include "general questions
regarding an arrest."5
Applicants concerned about a "mistake" from their
youth that may still be on public record are justifiably concerned about
answering questions about their past. Employers usually ask prospective
employees if they have ever been convicted of a crime, felony, or misdemeanor.
Typically, applications indicate that the individual does not have to divulge
a case that was expunged or dismissed or that was classified as a minor
traffic violation. It is important to note that a conviction for driving under
the influence (DUI) or driving while intoxicated (DWI) is not considered a
minor traffic infraction. Applicants with a DUI or DWI who have not checked
"yes" on a job application may be denied employment for falsifying the
form--even if the offense occurred many years ago. The employer could perceive
this as dishonesty, even if the applicant was simply confused by the question.
Applicants may be asked to complete and sign an
authorization for a preemployment criminal background investigation. This
authorization permits the employer to review documentation from any state,
governmental, or other reporting agency, without fear of a potential invasion
of privacy claim by applicants.
Former Employer Checks
A prospective employer often contacts the applicant's previous employers,
although many human resource managers are reluctant to provide useful
information. In fact, some states prohibit employers from intentionally
interfering with their former employees' attempts to find jobs by providing
false or misleading references.6 Legally, a former boss can say
anything truthful about a previous employee's performance. However, many
employers are willing to confirm only dates of employment, final salary, and
other limited information.
Legal Requirements for Background Checks
There are many practical reasons for a pharmacy employer to perform a
background check; more importantly, federal law requires it. This legal
requirement, although not specifically mentioned in any statute or regulation,
is countenanced by an obligation on the part of the pharmacy registrant not to
employ any person who has been convicted of a felony relating to controlled
dangerous substances (CDS) in a position that provides access to CDS.7
(A pharmacy registrant is defined as an individual who registers with
the Drug Enforcement Administration [DEA] or the corporation that owns the
pharmacy.) A thorough background check is the most practical way to determine
whether an applicant has a delinquent past. The DEA requirement also
stipulates that those individuals who have had an application for DEA
registration denied, revoked, or surrendered at any time cannot work for a
Pharmacies wanting to hire an individual who meets
the definition of a pharmacy registrant may request an exception to this
requirement from the DEA.8 To do so, the pharmacy employer must
have a waiver approved prior to hiring the applicant. Some states also have a
waiver requirement. This may mean that two waivers must be received by the
pharmacy registrant from the appropriate agencies prior to hire. In order for
the waiver to be granted, certain factors are considered by the DEA.
Furthermore, several states have enacted laws
requiring background checks for pharmacy-related personnel. Arkansas, for
example, has a provision that states:
Prior to or contemporaneously with filing an
application form for the applicable license or registration, each applicant
for a new intern or pharmacist license, or a new or reinstated registration as
a pharmacy technician issued by the Board, except as explicitly provided
herein, shall apply, using forms furnished by and pursuant to instructions
provided by the Board, for state and national criminal background checks, to
be conducted by the Arkansas State Police Identification Bureau and the
Federal Bureau of Investigation.9
The regulation further states:
(a) The Board shall not issue an initial
license/registration or reinstate a license/registration until the state and
federal criminal background checks conducted by the Arkansas State Police
Identification Bureau and the Federal Bureau of Investigation have been
(b) The Board may issue a provisional license
or registration to applicants for a new pharmacist or intern license or for a
new or reinstated pharmacy technician registration as provided in this
Although a provisional license or registration may
be obtained, a pharmacist, intern, or pharmacy technician who has pled guilty
or nolo contendere (a plea of no contest) or who has been convicted of
a felony or other offense, such as theft, fraud, or a pharmacy-related
offense, is not eligible for licensure or registration. Note: Individuals
applying for licensure or registration may appeal their conviction to the
pharmacy board and may have the conviction overturned for purposes of gaining
licensure. However, it is up to the discretion of the pharmacy board whether
to grant this appeal.
While the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) does not impose a legal requirement to
conduct a background check, current standards suggest that inquiries are to be
considered. Under the Human Resources standards, JCAHO requires accredited
organizations to comply with state laws, regulations, or even self-imposed
hospital policies regarding background checks.11 Organizations may
also check backgrounds because professional licensure does not necessarily
guarantee a criminal-free background. Further, an organization's internal
background investigation may be more comprehensive than an inquiry conducted
by the state board licensing agency.
Understanding and Using Databases
The Internet enables employers to
examine many public databases, which may provide valuable information about
prospective employees. Notably, there is little uniformity in information
regarding state, county, or city databases. The usefulness of these databases
strictly depends on the particular reporting agency's ability to convey
accurate and timely information to a database repository that is accessible to
the public. Although it seems appropriate and necessary to have a national
database that documents criminal activity, no such database is available for
public review. The Federal Bureau of Investigation database, while national in
scale, is unavailable to the general public.
In locating an appropriate database, employers may
consider information regarding professional licensing, educational background,
criminal past, credit history, and driving records of prospective employees.
Employers may also consider databases containing bankruptcy proceedings,
military records, and workers' compensation records.
Professional Licensure Verification and
Review: Every state pharmacy board
is required to make certain records available as directed by state law. These
laws, known as Open Records Acts, allow the board to inform inquiring
individuals as to whether a pharmacist or technician has had a disciplinary
action taken against him or her. The laws also permit the board to disclose
the status of current professional licensure, including dates of issue,
renewal, and expiration.
On the National Association of Boards of Pharmacy
Web site, a national database provides information regarding individuals who
have been disciplined by a pharmacy board. This database is free and easily
accessible to anyone and allows users to check the status of licenses and
permits. Applicants may have this background check completed prior to
Education verification is recommended for all prospective pharmacy positions.
While the federal Family Education Rights and Privacy Act prevents a
university from disclosing an applicant's grades, most universities are
permitted to declare certain "directory information," which can include dates
attended, date of graduation, and degrees granted, unless the student has
given written notice otherwise.12 The employer may require the
applicant to provide a transcript that indicates coursework completed and
degree(s) received. Current security techniques, including security paper, are
employed by universities to keep individuals from changing grades, adding
degrees, or altering transcripts in other ways.
Health Care Fraud, Abuse, and Malpractice
Checks: Practitioners involved in
health care fraud and abuse and malpractice actions can cost an organization
millions of dollars, in addition to injuring patients and damaging
organizational goodwill. Two databases provide information addressing these
issues: the National Practitioner Data Bank (NPDB) and the Healthcare
Integrity and Protection Data Bank (HIPDB). The NPDB reports practitioner
malpractice actions, whereas the HIPDB is a flagging system that identifies
health care practitioners, providers, and suppliers involved in health care
fraud and abuse. Information in the HIPDB report alerts organizations to
practitioners who may warrant closer investigation.
Information in the NPDB is available online to
entities meeting the eligibility requirements as defined under the law and
NPDB regulations.13 To access information, entities must first
register with the data bank. Most hospitals, registered governmental agencies
(e.g., the Veterans Administration and the Public Health Service), as well as
state health care agencies, can obtain access to the database. NPDB
information is not available to the general public.
While both independent and chain retail pharmacies
do not have access to these banks, employers can require potential pharmacy
employees to perform a self-inquiry (query) at the NPDB-HIPDB Web site. For a
small fee, a report is generated that is returned to the pharmacist in about
two weeks. The employer can then request that the employee provide a copy of
the report to the employer.
State Criminal Background Check:
Each state maintains a database of
criminal convictions and activity, such as probation. For a fee, states
typically conduct background searches on particular individuals. Some of these
searches can be performed via the Internet, and the results can be obtained in
a matter of seconds. The individual's name, date of birth and social security
number may be required. The background search usually returns all felony and
misdemeanor convictions. Some searches may be limited in scope, e.g., the
length of time the search will cover. It is important to note that a state
criminal background search reviews records only for that particular state. If
an applicant has lived in other states, background searches in each of those
states may also be conducted. Many states also maintain publicly accessible
databases comprising court records of individuals involved at the trial court
level. These district or superior court records may reveal not only criminal
activity but also litigation activity, such as civil court judgments, divorce
and protective orders, or other pending and past litigation.
Sexual Offender Search:
With over 385,000 registered sex offenders in this country, any employment
background check should include a review of criminal sexual activity.14
Searching for sexual offenders, since they are now required to be registered
in the state in which they reside, has never been easier. The U.S. National
Sex Offenders Public Registry is a cooperative effort between state agencies
and the federal government that hosts public sex offender registries. The
registry is coordinated by the Department of Justice, which implements a Web
site search tool that allows users to submit a single query to obtain
information about sex offenders throughout the U.S.
Individual states maintain Internet incarceration records, which include
reasons why and when an individual was incarcerated in state prison, the date
of release, and any current warrant information for parole violations. Many of
these Web sites also provide photographic identification of the individual.
Most of these sites are affiliated with the state department of corrections,
but the Federal Bureau of Prisons also maintains a Web site that provides
information regarding inmates.
Obviously, if employees are going to handle cash, it would be valuable to know
if they have had any issues of concern regarding finances. Since few employees
volunteer such information, employers may check their credit history to gauge
an individual's level of responsibility. Some employers believe that if an
individual is not reliable in paying bills, then he or she will not be a
The Fair Credit Reporting Act (FCRA), as amended
by the Consumer Credit Reporting Reform Act of 1996, enables employers to
access a consumer's credit report for employment purposes.15
As a result, an employment background check from one of the three major credit
reporting agencies (Experian, TransUnion, and Equifax) provides a modified
version of the credit report, called an employment report. An employment
report includes information about credit-payment history and other credit
habits that may be considered significant by a potential employer. However, a
modified credit report does not include the credit score of the individual.
Furthermore, this report does not place an "inquiry"on a credit file that may
be seen by a company considering issuing the individual credit in the future.
Such credit inquiries tend to lower an individual's credit score.
The FCRA requires that businesses certify to the
credit reporting agency that:
• Prior to accessing a consumer
report, the employer has provided a separate written document to the
consumer/applicant, disclosing that a consumer report may be obtained for
employment purposes, and that the employer has received written authorization
from the consumer to pull his or her consumer report; and/or
• Prior to taking adverse action, based
in whole or partly on the consumer report, the business will provide a copy of
the consumer report to the consumer and a summary of the consumer's rights as
indicated by the Federal Trade Commission ("Consumer Rights"); and
• The business will not use a
consumer report in violation of any applicable federal or state equal
employment opportunity law or regulation.16
If military service is important to the position, verification of an
applicant's military background can be valuable. Under the federal Privacy
Act, service records are confidential and can be released only under limited
circumstances. Inquiries that are not authorized by the subject of the records
must be made under the Freedom of Information Act. Even without the
applicant's consent, the military may release an applicant's name, rank,
salary, duty assignments, awards, and duty status.17
Social Security Number Verification:
Applications for employment will
typically request a disclosure of the individual's social security number or
portion thereof. The Social Security Administration (SSA) does provide a
variety of methods where an employer can submit social security numbers to the
SSA for verification. While an employer may want to verify that the applicant
is who he or she claims to be, the service offered by the SSA can be used to
verify only current or former employees and only for wage- reporting purposes.
Requesting such information from the SSA prior to employment may be punishable
by a fine, imprisonment, or both. Thus, in order to address the authenticity
of the individual, employers may require the applicant to provide a social
security card and/or birth certificate.
The SSA is currently planning to provide a
consent-based social security number verification. Before the employer enrolls
in this program and pays a fee, the employer has to obtain the written consent
of the number holder. The SSA will then verify the name and social security
number combination of the prospective employee as being correct or incorrect.
Employers can review certain SSA information
regarding numbers, such as where the number was issued. Since 1973, social
security numbers have been issued by the central SSA office. The first three
digits of a person's social security number are determined by the zip code of
the mailing address shown on the application for a social security number.
(More information on this topic may be found at
Motor Vehicle Driving Records:
Every state has some form of motor vehicle department. Obtaining information
from these agencies verifies the specified state operator license, as well as
the previous state of issue, violations, points, and current license status.
While this check may be considered unnecessary, it may provide information
regarding an individual's willingness to comply with pharmacy laws and
regulations, as well as state-directed motor vehicle requirements. A motor
vehicle report (driving record) is inexpensive and recommended for every
search, because it can reveal information that may not be uncovered in a
criminal search and could reflect an individual's character. The driving
record will report a DUI, accidents, tickets, drug possession, current
warrants, and failures to appear in court, and it can be used to confirm the
subject's date of birth. Many states require an applicant's "consent to
release" before the motor vehicle department can release the records.
Ey typing an individual's name in the search engine Google, information may be
found regarding an applicant. However, any potential employer should carefully
ensure that the information is truly representative of the prospective
employee. Employers may also search such sites as WhitePages or Facebook,
which are common Web sites that can reveal significant personal data regarding
Workers' Compensation Check:
In most states, when an employee's claim goes through the state workers'
compensation system, the case becomes public record. An employer may use this
information only if an injury might interfere with a person's ability to
perform required duties. Under the Americans with Disabilities Act, employers
cannot use medical information, or the fact that an applicant filed a workers'
compensation claim, to discriminate against applicants.18 In some
states, employers may access workers' compensation records after making an
offer of employment. To gain access, employers may have to register with the
workers' compensation agency and confirm that the records are being accessed
for legitimate purposes. Generally, a consumer reporting agency that does a
background check for an employer may not reveal medical information, and the
employer typically does not rescind an offer due to a workers' compensation
claim. However, if an employer discovers that an applicant has not revealed a
previous employer where a workers' compensation claim had been filed, the
employer may terminate the new hire due to falsified application.
Inadequacies of Background Checks
The two key components of any
background check are accuracy and completeness. Although it is evident that
many sources of information are available, data obtained by a Web-based search
are only as reliable as the information contained in the database, whether
private or public. If, for example, a county court does not forward criminal
convictions to the state criminal database system, a criminal record check is
Some employers, including pharmacy employers, have
used other techniques to perform background checks, such as polygraphs or drug
testing. While both of these techniques may be legally permissible, the
accuracy and/or reliability of these tests is inadequate when used alone.
Polygraphs, although considered by polygraph examiners as extremely reliable,
measure physiological responses that can be manipulated by some examinees and
do not tell a complete story. Similarly, drug testing paints a picture only of
an applicant's current drug use. When used in conjunction with a thorough
background check, these methods may be helpful in verifying certain
Databases can provide valuable information, but
only if that information is solidly connected to the employee. Some
prospective employees not only lie about their work experience, degree
received, and social security number but also about who they are. Fingerprints
are the most reliable assurance of an individual's identity, and photo
identification is the next best source. A government-issued identification
should be the most trusted, considering there are many photo-identification
mills that create identification without verification of identity.
Negligent Hiring Claims
One of the most significant
consequences of not performing a background check is a potential negligent
hiring claim. Employers across the country have been under attack for these
claims for years. The claim is based on a theory of negligence, that the
employer failed to check references, criminal records, or general background
information, which resulted in conduct that injured a consumer or another
employee. Generally speaking, employers have a duty to conduct a reasonable
investigation into a prospective employee's past. The Fourth Circuit Court of
Appeals determined an employer can be liable for the acts of an employee on a
theory of negligence when:
An employer in placing a person with known
propensities, or propensities which should have been discovered by reasonable
investigation, in an employment position in which, because of the
circumstances of the employment, it should have been foreseeable that the
hired individual posed a threat of injury to others.19
While there are no set rules regarding what must
be checked, documentation of a background check is prudent before hiring an
Who Performs Background Checks?
There are six large national
firms, known as consumer reporting agencies (CRAs), that perform
background checks, and at least 300 smaller firms that provide these services
locally to businesses. Finding one of these online companies is as simple as
using an Internet search engine to find Web sites specializing in background
checks. Employers should be wary of companies that advertise that they can
"find everything about anyone." Employers should also use caution in signing
an agreement that relieves the CRA of liability for negligent reporting.
If a third party performs a credit check, the FCRA
requires the applicant's consent and that the applicant be provided with the
results.20 The FCRA generally requires that the CRA not disclose
public records of arrest, indictment, conviction, civil judicial action, tax
lien, or outstanding judgment, unless the agency has verified the accuracy of
the information during the 30-day period ending on the date when the report
was furnished. Such a rule provides the employer with a statutory requirement
that accurate information be provided by a CRA. In some ways, the FCRA
restricts a CRA from obtaining and disclosing certain information regarding
applicants, such as interviews with neighbors, friends, or associates of the
consumer/applicant. A self-conducted employer background check does not have
the same restrictions.
Employers must protect their
company and employees from the harm of hiring a person unsuitable for the
position. Thus, it is incumbent upon every organization--whether large or
small, public or private, for profit or nonprofit--to refrain from hiring a new
employee who has not been thoroughly screened. The risks to current employees
and the organization outweigh the cost of such a background check, including
the employee time and an outsourced company expense to perform the check. The
financial concern can no longer be an excuse to avoid performing a background
check, since many databases can be accessed for free and utilized to
investigate the background of potential employees.
Worldwide Investigative Group LLC. Available at:www.allianceinvestigative.com
/background.html. Accessed September 7, 2006.
2. Shaffer DJ, Schmidt
RA. SHRM Legal Report, September-October 1999.
3. U.S. Department of
Justice Bureau of Justice Statistics. Available at:
www.ojp.usdoj.gov/bjs/pub/press/ppus02pr.htm. Accessed October 24, 2006.
4. Privacy Rights
Clearinghouse Fact Sheet 16. Available at: www.privacyrights.org/fs. Accessed
October 24, 2006.
Department of Fair Employment and Housing Fact Sheet. Available
at:www.dfeh.ca.gov/Publications/DFEH%20161.pdf. Accessed October 24, 2006.
6. California Labor
7. 21 CFR §1301.76.
8. 21 CFR §1307.03.
9. Arkansas State Board
of Pharmacy Regulations, Regulation 11, Criminal Background Checks,
11-00-0003-APPLICATION PROCEDURE (a)(1).
10. Arkansas State
Board of Pharmacy Regulations, Regulation 11, Criminal Background Checks,
11-00-0002-BACKGROUND CHECK REQUIRED (a), (b).
11. Joint Commission on
Accreditation of Healthcare Organizations. Available at:
Accessed October 24, 2006.
12. 20 U.S.C.
13. 42 U.S.C. §11101
et. seq, 45 CFR Subtitle A §60.11.
14. Nadell B. Sleuthing
101, Background Checks and the Law; 2005.
15. 15 CFR
§604(a)(3)(B) [15 U.S.C. § 1681b].
16. 15 CRF §615(a) [15
U.S.C. § 1681m].
17. 5 U.C.S. §552, 552a.
18. 42 U.S.C.
19. Blair v.
Defender Services, 386 F.3d 623 (4th Cir., 2004).
20. 15 CFR
§604(b)(2)(A)(i) [15 U.S.C. § 1681b], 15 CFR §606(d)(3) [15 U.S.C. § 1681d],
15 CRF §613(a)(1) [15 U.S.C. § 1681k].
21. U.S. Department of
Justice Pharmacist's Manual. Available
Accessed October 24, 2006.