BEHIND THE SMILE The unfortunate hiring of surgical tech Rocky Allen highlights the importance of effective background checks.

Would you have hired Rocky Allen, the surgical tech who faces federal criminal charges for allegedly stealing syringes of fentanyl at Swedish Medical Center in Englewood, Colo., and replacing them with syringes of saline? The clues not to hire him were hard to miss.

• He'd been fired 4 times. When Mr. Allen applied to become a surgical tech at Swedish, he'd already been fired by 4 hospitals in Arizona, California and Washington state, according to court records.
• He fabricated Middle East employment. Mr. Allen lied about his overseas experience on his application to Swedish, which stated that he'd worked as a surgical tech for a medical defense contractor in Afghanistan, Iraq, Kuwait and Yemen. Investigators now say he fabricated his Middle East employment in order to gain employment — and access to fentanyl.
• He'd been court-martialed. In 2011, for stealing fentanyl while enlisted in the U.S. Navy.

Despite these red flags flapping in his background, Swedish hired Mr. Allen in August 2015 and fired him 6 months later — but not before about 2,900 patients had surgeries while Mr. Allen worked there (Swedish has offered those patients free tests for HIV, hepatitis B and hepatitis C).

Swedish maintains that it checks applicants thoroughly. "Like most hospitals, our hiring process includes a background check by a third party, interviews by managers and peers, confirmation of training and certification, state registration and pre-employment drug screening," says a Swedish spokeswoman in a statement.

What can we learn from the hiring of Mr. Allen? You have a responsibility to learn all you can about potential hires. Follow these 3 steps to keep your facility in compliance with employment regulations and limit the potential of future legal liability.

Review public records
Establish a relationship with a reputable consumer reporting agency (CRA) — firms that perform credit and criminal background checks — and ensure that each potential new hire signs a consent form authorizing a background check. If you're running a background check, the potential new hire must also receive a Summary of Rights (osmag.net/JyF2Vq) as a requirement of the Fair Credit Reporting Act (FCRA). Have your CRA run a local, state and federal records check. Recent guidance issued by the Equal Employment Opportunity Commission (EEOC) says you can't use an applicant's arrest records when considering employment. For example, if an applicant has been arrested, but never convicted, you should not factor the arrests into the decision of whether to offer that individual a job.

Criminal background?
The EEOC asks that employers consider 3 factors when considering hiring an applicant with a criminal background on his record:

• Nature or gravity of the offense. Was it violent? Were drugs involved? Was it a white-collar crime?
• How long ago did the offense occur? Was the applicant convicted 6 months ago or 5 years ago? If it has been several years, the EEOC would take the position that the conviction should not be considered when making an employment decision.
• The nature of the job held or sought. The final factor requires you to measure the position the applicant is applying for against the criminal conviction. Does the conviction have a direct impact on the job they would perform at your facility? Linking the criminal conduct to the essential functions of the position can help you prove that a decision not to hire was made out of business necessity.

Protect yourself
How do you proceed when a potential new hire has a record of some sort? When working through the EEOC's factors doesn't provide a clear-cut answer, it might be best to contact a human resources professional who's well versed in employment regulations. Each hiring situation you face will differ, and it's sometimes important to seek the advice of an expert. But in general, follow the "adverse action" steps if you chose not to hire an applicant based on the findings of a criminal background check.

Adverse action is a two-part process. The first part involves the preliminary notice of adverse action. This letter sent to the applicant states that a preliminary decision has been made to not employ them based on the findings of a criminal background, and should they choose to dispute this information, they can contact the CRA you're working with. Enclose a copy of the CRA's report, as well as a summary of the applicant's rights. Send the letter via certified mail, because the applicant has 3 to 5 days to dispute the report's information.

If the applicant hasn't disputed the report within that window, you can move forward with part two: sending the final notice of adverse action. This letter, which should also be sent by certified mail to ensure proper delivery, is similar to the first in that it states a decision has been made to not employ the applicant based on the results of the background check. OSM