The current economic climate, unemployment and concerns regarding job security have contributed to the increased use of falsified CV’s in job applications as well as criminal activities by employees. As a countermeasure, employers are making use of background checks and polygraph tests to combat the fraudulent and criminal activities of applicants and employees alike. This is a useful measure to assist employers, but a number of important rules and requirements regarding background checks and polygraphs must be kept in mind.
Background checking is a useful tool when screening job applicants, whilst continuous background checks of employees also enable companies to identify changes in an employee’s circumstances thereby allowing the employer the ability to continuously assess the risk of potential employee fraud or criminal activity.
Firstly, it is essential to obtain the written consent of the applicant or employee. Research has shown that a fair percentage of applicants drop out when they become aware that background checking is carried out. By creating awareness, it also affords the applicant the opportunity to proactively explain possible disparities which could influence the potential employer.
The employer must ensure that it does not discriminate on grounds such as race, ethnic origin, sexual orientation or gender. It is important to ensure that background checks are performed for the purpose of validating the information disclosed by the applicant itself. Overzealous background checks on information which has no bearing on the applicant’s ability to perform the job could be regarded as discrimination, and employers must tread carefully when in this terrain.
A good place to start background checks is to check whether the applicant is who they say they are. Background checks are pointless if you are checking against the wrong identity. Applicants can easily avoid criminal record checks or reference checking by omitting addresses or providing false information.
Once the identity of the applicant has been established, background checks that can easily be done by employers include employment history, residence verification and educational background. Criminal history and credit checks should, however, be carried out by professionals trained in conducting these checks and with access to the necessary databases.
Polygraph tests commonly known as “lie detector tests”, can be used by employers when they are faced with criminal activities, such as theft, but it is unclear as to who the real culprit is.
Our courts have ruled that a polygraph test does not serve to prove that someone is actually dishonest, lying, or guilty, but is merely an indication of deception. Polygraph tests are accordingly, by itself, not a basis for a finding of guilt and can only be used in support of other evidence.
It can however be a useful tool to narrow down or identify potential suspects, allowing greater focus in an employer’s investigations. There are, however, some strict rules that need to be adhered to when conducting these tests.
Generally, employers are permitted to use polygraph tests to investigate specific incidents where –
- An employee had access to the property which is the subject of the investigation;
- There is a reasonable suspicion that the employee was/could have been involved in the incident;
- There has been economic loss or injury to the employer’s business;
- The employer is combating dishonesty in positions of trust;
- The employer is combating serious alcohol, illegal drugs or narcotics abuse and fraudulent behavior within the company; or
- The employer is combating deliberate falsification of documents and lies regarding the true identity of the people involved.
The employee should also be informed that –
- Undergoing the test is voluntary and only questions discussed prior to the examination will be used;
- He/ she has the right to an interpreter; and
- Should he/she prefer it, another person may be present during the examination, provided that such a person does not interfere with the proceedings.
It is clear that the use of background checks and polygraph testing may be very useful to an employer in reducing certain risks with respect to employees. However, these remain tools only and employers should always use circumspection when utilising these instruments with due consideration to the outcomes desired by the employer as well as the rights of the employee.