Staffing

Overview

Staffing is the only industry where the basic question of background screening has no clean answer. Everywhere else, one employer runs a check on one candidate for one job. Here there are 2 organizations, 2 sets of standards, and a worker who may be placed 4 times in a year.

Nearly every compliance failure in staffing traces back to the same gap: both parties assumed the other one handled it.

Throughout this page, “agency” means the staffing firm, “client” means the company where the work is performed, and “screening company” refers to the outside firm that supplies the report.

Who Is the Employer

Usually both, in different ways and for different purposes.

The agency typically hires, pays, and issues the tax documents. The client directs the work, sets the hours, and controls the site. That arrangement is commonly described as co-employment, and the practical consequence is that liability does not sit neatly with one party.

For discrimination purposes, both can be on the hook. A client that instructs an agency to screen out a protected group has not insulated itself by using an intermediary, and an agency that follows such an instruction has not insulated itself by pointing at the client.

Who Owes the Background Check Duties

The pattern that goes wrong looks like this. The agency runs the check and sends the report to the client. The client reads it and declines the placement. The agency tells the worker the client passed. Nobody sends an adverse action notice, because each assumed the other did, and the worker never sees the report that cost them the assignment.

The safe reading is that the agency, having procured the report, handles the adverse action process whenever a report contributed to the outcome, regardless of who made the call. If the client is receiving and evaluating reports itself, the client is using consumer reports for employment purposes and carries its own obligations.

The Remote Application Shortcut, and Why to Be Careful With It

Federal law provides a narrow alternative where a worker applied by mail, telephone, computer, or similar means, and the disclosure and authorization were handled the same way. In that situation a single notification within 3 business days of the adverse action can substitute for the usual 2 step process.

It looks tailor made for high volume remote hiring, and it comes with a warning. State and local fair chance rules frequently require the full sequence with a genuine opportunity to respond, and the federal shortcut does not override them. An agency placing across multiple jurisdictions generally cannot rely on it safely.

Reusing a Report Across Placements

A worker placed 3 times in a year does not need 3 identical background checks, and the pressure to reuse is obvious. The limits are worth understanding.

• The authorization has to cover it. A disclosure and authorization written for a single assignment does not obviously extend to future ones. Language covering the duration of the working relationship is what makes reuse defensible.
• The report ages. A check from 14 months ago says nothing about the last 14 months, and a client relying on it is relying on a snapshot.
• Passing it to a client is a separate question. Handing a report to another organization is not automatically covered by the authorization the worker signed with the agency.
• New assignments can raise new requirements. A worker cleared for a warehouse role may need a different check entirely for a healthcare placement.

The workable answer for most agencies is a clearly worded authorization covering the working relationship, a defined refresh interval, and a re-check whenever an assignment requires something the original did not cover.

When the Client Sets the Standard

Clients frequently specify what they want screened, and sometimes what disqualifies. Three points follow.

A client requirement does not override the law. If the placement is in a jurisdiction with fair chance rules, those apply, whatever the client’s standard says. An agency that runs a stricter check because a client asked is still the one running it.

Written standards protect both parties. A client that says “no felonies” has handed the agency a blanket exclusion, which is the classic discrimination exposure. A client that specifies job related criteria has given the agency something defensible to apply.

Screening evidence belongs in the contract. Clients in regulated sectors carry their own obligations and cannot discharge them by assumption. Healthcare is the clearest case, where liability for a claim sits with the organization that submitted it rather than the agency that placed the worker. Specify the level, the frequency, and the evidence.

Volume, Speed, and Accuracy

Staffing runs on placement speed, and screening is the slowest step. That tension produces predictable shortcuts.

• Database only criminal searches. Fast and cheap, and not a verified record. A hit has to be confirmed at the court before anyone acts on it.
• Acting on an incomplete report. The preliminary notice has to include a copy of the report, which is difficult to satisfy before the report is finished.
• Skipping the response window. The interval between notices exists so a worker can correct an error, and compressing it to nothing removes the only protection against a wrong report.
• Reusing a stale check because re-running it would delay a start date.

The accuracy problem is worse in staffing than elsewhere because the same worker is screened repeatedly. An error that survives one check reappears in the next one, and the worker loses placements over a record that was never theirs.

Common Mistakes

• Both parties assuming the other sent the adverse action notice. The most common failure in the industry.
• Treating a contract term as a transfer of legal duty. An indemnity allocates cost, not obligation.
• Applying a client’s blanket exclusion without asking whether it is job related.
• Using one authorization form across every jurisdiction, when several states require their own disclosures.
• Reusing a report the original authorization did not cover.
• Relying on the 3 business day federal shortcut in a state that requires the full process.
• Assuming the client’s own screening covers your workers, or the reverse.

For Workers Placed Through an Agency

• You have the same rights as a direct hire. The disclosure, the authorization, the copy of the report before a final decision, and the right to dispute all apply.
• Ask who ran the check. If an assignment falls through over a report, ask the agency which screening company supplied it and request a copy. You are entitled to one.
• “The client passed” is not an adverse action notice. If a report contributed to the decision, you should have received the report and a chance to respond.
• Fix an error once and it stops recurring. Disputing with the screening company corrects the underlying record, which matters more here because you will be screened repeatedly.
• Ask how long your check stays valid, and whether a new assignment will require a new one.
• Name the agency as your employer on future applications, since that is where your employment record sits. Our employment history page explains why listing the client site instead causes verification failures.

Best Practices

• Decide in writing, per client, who sends adverse action notices, and default to the agency doing it
• Write authorizations to cover the working relationship rather than a single assignment
• Set a refresh interval and re-check when an assignment requires something new
• Push back on blanket disqualification criteria and ask clients for job related standards instead
• Comply with the rules of the jurisdiction where the work is performed, not where the agency is based
• Never act on a database hit that has not been confirmed at the court
• Put screening level, frequency, and evidence obligations into every client contract
• Give workers a real response window even when a start date is at risk

Frequently Asked Questions