The Uber driver arrested on a terrorism offense – after police said he drove into multiple victims on a bike path in New York City on Halloween – has led many employers to re-consider their own pre-employment screening practices.
It can be a challenging process. Screening of employees requires those doing the checks to be in compliance with a variety of laws. There is also a plethora of topics that are covered by pre-employment checks.
Yet, there is no way of guaranteeing that an employer would have been alerted to a potential terrorist or violence-prone individual in a routine screening.
In the Uber driver case, Sayfullo Saipov, 29, originally from Uzbekistan, passed Uber’s background check in July 2017, according to the company. He, like all of the company’s drivers, underwent a screening process before using the Uber app. It included a motor vehicle and criminal records check. It also included a check of the U.S. Department of Justice national sex offender public website.
Despite these precautions, Saipov allegedly drove a rented pick-up truck into many people which led to the death of eight victims and injuries to 11 others, police said.
When asked about the screening used by Uber, Washington, DC-based employment attorney Kristin Alden said, “The guy arrested for terrorism – he drove for Uber and Lyft. Who knows what would have happened if Uber and/or Lyft had conducted broader background tests? Initial reports suggest that he wouldn’t have been screened out.”
“Although Uber and Lyft should have rigorous hiring standards given the services they provide, it’s not clear that a more stringent background check would have alerted the companies to this alleged terrorist behind the wheel,” Alden said.
What is clear is that almost all employers will perform background checks on prospective employees. In fact, about 96 percent of U.S. employers conduct some kind of background check, according to one survey. Overall, the most common background checks are credit reports and criminal reports, Alden said. Credit checks are most often used if the position requires the employee to handle money and criminal checks are most often used in situations involving security, Alden adds.
When asked what pre-employment screening should include, Diane A. Seltzer Torre, a Bethesda, Maryland-based employment lawyer, told SmartCEO that at a minimum the employer should verify:
- Employment history
- Education history
- That all necessary licensure are in good standing.
- References should be checked.
- Some employers, with the consent of the applicant, do credit checks.
- Searches of public records are common, including both criminal records and civil litigation histories.
- Drug testing may be considered, depending on the industry.
“Employers have some latitude on the scope of a background check, but it’s important that employers treat all applicants for similar jobs similarly. When a company treats different people differently, they may more likely face accusations of discrimination. The employer should be able to articulate a clear connection between the scope of the background check and the job requirements,” Alden said.
There are topics employers cannot ask about. “Employers cannot and should not ask directly or indirectly about potential employees’ age, gender, sexual orientation, family status, race, ethnicity, national origin, disability, or religion,” advises Serge da Motta Veiga, a management professor at American University. “This is not only illegal, but also it is logical. Indeed, none of these questions should impact a potential employee’s skills, capabilities, ability and desire to learn, or potential fit with the company.”
Rules on medical conditions and disability are relatively complex. During the pre-offer phase, the employer cannot ask about medical conditions or whether the employee may need accommodations for medical conditions, Alden said. “An employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant,” she explained. “The employer can ask, however, about whether the employee is capable of performing the functions of the job. An employer can identify the physical requirements of a job (such as the ability to lift or walk) and ask if an applicant can satisfy these requirements.”
After the employer makes a conditional offer of employment, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category and as long as the questions are job-related, Alden said.
In addition, employers must get an applicant’s written permission to run a credit check; tell the applicant how the information will be used; give the applicant an opportunity to dispute the information before a final hiring decision is made; and give the applicant a copy of the credit report if he or she isn’t hired, Alan Lescht, who practices employment law in Washington, DC, said.
Increasingly, more employers are also checking social media sites such as LinkedIn and Facebook for any “potential red flag” on the part of applicants, da Motta Veiga said.
“Employers have access to much more information online — including applicant’s publicly available social media posts — which in turn increases their interest in screening,” Torre said.
There is another issue that is generated by the experience of the Uber driver. It applies to most companies in the “sharing economy” — such as Uber, Lyft, or AirBnb, da Motta Veiga said.
“To what extent can those companies pre-screen potential employees when they don’t fully incorporate them as employees,” da Motta Veiga asked. “Indeed, who is responsible when an Uber driver gets into an accident: the driver or Uber? How do companies like Uber compensate their employees? These are very difficult questions to answer, especially since the legal system, including employment lawmakers, is still learning and adjusting to such companies in the sharing economy and beyond. This is my personal opinion, but employment lawmakers need to step up and create more stringent rules and laws, which can then be enforced, not only on how companies in the sharing economy pre-screen and hire their potential employees, but also on how they consider them as employees of the company in terms of responsibility, compensation, benefits, etc.?”
Meanwhile, many attorneys suggested that employers look again at their employment screening practices.
Alden said a question arises why Uber and Lyft don’t have more strident background checks.
“Of course, they should – or perhaps federal, state or local government needs to be more strident,” Alden said.
Feature photo: The Home Depot rental truck used by perpetrator Sayfullo Habibullaevich Saipov during the 2017 Lower Manhattan attack, the morning after the incident. (Photo by Gh9449)