The Snowden leaks, the Navy Yard shooting, and recent evidence that the U.S. Office of Personnel Management’s (OPM) primary background check contractor, U.S. Investigations Services Inc. (USIS), allegedly turned in hundreds of thousands of incomplete background investigations, all have forced the federal government to look at changing the way it does background checks.

For one thing, USIS had evidently been doing many of their own audits. No more, OPM declared in February. Not only is OPM going to be doing their own checks on contractors, they are also going to increase inspections and put in place a tracking tool to make sure standards are met before background investigation cases are closed, says an article in The Washington Post.

OPM also wants to reduce the number of government workers eligible for special clearance, conduct more frequent investigations of those who are cleared, and consider federal funding to help state agencies keep their records updated and make it easier for reviewers to access criminal records.

This isn’t how it was in the good old days, says Vincent Luongo, a retired federal supervisory special agent and owner of VCL Consulting, where he’s a private federal contract investigator. Back in the late 1970s, when he started with what is now OPM, they were doing all the background investigations for the entire federal government, with the exception of the FBI. “It was federalized, more standardized, and there was no dollar as a bottom line,” Luongo says. “As a federal agency, OPM was solely responsible for its own product, and it produced the best possible product you can imagine.”

Now that he has retired from government life, Luongo has experienced the other side, in the private sector, and has done work for subcontractors of USIS, among others. “Given the nature of the mandates and the time restraints and the bottom line being the dollar, the investigative process has been compromised a lot by having private contractors have so much power in the ability to do these investigations,” he says. “When the federal government did their own work, there was much more quality control, a better product, and more was learned than is being done with the private industry doing background investigations. (The private companies) seem to be more anxious to get things done than they should be, and it’s not the most efficient way.”

A couple weeks after interviewing Luongo, further evidence supporting his belief that private investigation companies rush their screens did come out from an audit done by OPM’s inspector general. The report from June 4, 2014, stated that one USIS employee turned in more than 15,000 investigations in one month, translating to about 21 screens every hour of every day during that month, which has raised red flags.

“In my business, time is important, and you don’t want to rush things in order to get information; you want to get the right information,” says Jason Morris, President and Chief Operating Officer of EmployeeScreenIQ. “I see (the federal government) putting more controls on what the outsource company is able to do and what they might be looking for as far as turnaround time. I think they were trying to shoehorn a lot of stuff in there and they weren’t able to do it, and all they did was rush things through the wrong way.”

“The U.S. Equal Employment Opportunity Commission (EEOC) mandates a lot of rules on background checks,” says Stephanie Elder, Chief Operating Officer of Gallant Background Checks. “There’s a lot of inconsistency. They see the big, broad picture of wanting to be able to find records on people, but then they want restrictions because they don’t want to discriminate. That’s where it really puts a lot of pressure on Human Resources and security of a business or organization because the EEOC has a lot of inconsistencies in their standards.”           

“There are a lot of gray areas with background screening and laws on what you can report and what you cannot report,” adds Carla Mowery, Chief Executive Officer of Gallant Background Checks. “It’s such a broad area, and it depends on the state laws too.” For example, in California, a background check can only go back seven years, so if a prospective employee had a felony before that, it cannot be reported, unless it’s a sex offense, she says.

Also now, hiring practices may depend on the position. In certain states, the employer has to take into consideration what the position is before denying employment to a person with a criminal background. “Some states make it really difficult for some of these companies because they have to abide by all of these federal laws,” says Mowery. “It leaves a lot of gray area so that companies can get into trouble,” Elder agrees. 

“Private companies are far more under the gun than the federal government,” says Luongo. “The private industry is really handcuffed when you think about it, to the degree to which they can find the right people for the right job. There are so many cylinders that have to click at the same time in order for this to be a working process and it’s very, very difficult to get from the beginning to the end.”

You Get What You Pay For

So what can private enterprises and security executives do to help ensure that a background check doesn’t fail? “The first important step is that if you’re using a background check company, make sure it’s doing a good, comprehensive check,” says Mowery. “You want to find a company that will educate their clients and tell them exactly what they’re getting. The HR person is not going to have the time to keep up with all the changes. You want to use somebody that is a professional, that knows the industry, that gets updates all the time about any changes.”

“Companies are liable for negligent hiring if they don’t do their background screening properly, so they have to do it right. Hiring it out is clearly the best practice. It’s like having insurance,” Morris adds. You get what you pay for with background screenings, says Mowery. “We know it’s a challenge because people have budgets and cheap is attractive. Cut costs in other areas, but don’t cut costs in this area because one lawsuit can cost you millions,” she says.

Another way to stay on top of the game, especially if you are doing your own background investigations, is to keep up with the guidelines in your state and know the laws well, say both Mowery and Morris. “When I started this business, our client was usually security,” Morris says. “Over the years, that has been a dramatic shift, and our client is 90 percent of the time HR. HR understands that process and how it’s supposed to work and what they’re supposed to do. They need to familiarize themselves with the employment laws and what the federal and state guidelines are if they’re going to conduct their own background checks.”

Be thoroughly familiar with the EEOC manual. “If I was a hiring official, I would want to have the manual right at my desk and be as fluent in that manual as I could possibly be,” says Luongo.

“Knowing the requirements for your particular industry will really help protect you,” Mowery says. “Does your industry require a federal criminal check, not just a regular national check that picks up state and country criminal activity?”

Be sure to follow the Fair Credit Reporting Act and make sure the prospective employee is giving consent to a background check. If your company does random background checks, this needs to be stated in your policy. “Have a good, sound policy in place so that every employee knows what to expect,” says Mowery. “If it’s in your company policy that you do random background checks, make sure a third party does them or you could get in trouble for discrimination.”

Luongo sees a bit of a different perspective, having spent his entire career doing strictly federal government investigative work. “If I were a security professional, my hands would be tied with the EEOC issues, plus you can’t use a lot of the criminal history. People are more prone to sue to find out why they’re not being hired, and you’re under that kind of a gun. To work as a private security person, responsible for maintaining the quality of the person that’s going to be hired by that firm is very much more of a precarious situation than a public official. They’re under extreme pressure from HR,” he says. “The federal government can tell you no, you didn’t get the job because of X, Y and Z, and you’re pretty much on your own after that. But a private company may end up getting sued.”

The bottom line: Educate yourself. Know the laws, especially for your industry. Consider hiring a background screening company to do your background checks, if you don’t already. And realize that no matter how thorough a background check you do, there’s no predicting what someone will do in the future. “It’s an interesting topic because it has the potential to affect people every day, such as the Snowden breach," Luongo says. “I can tell you everything on Snowden that you want up until today, but what is he going to do next month? I have no idea.”