Background checking is coming to yachting just as it already has to many other industries. James Howard-Higgins from Drum Cussac explains what it can do and what the benefits are. Some employers do feel this is an unnecessary invasion of privacy, but others may not. For the latter James also outlines what they may and may not do when digging into people’s – hopefully – shade-free pasts. He also indicates how to avoid the risk of being sued for so doing.

 You're filling out the application for a position and there it is in bold letters: “You must agree to a background check as a prerequisite for employment.” During the interview you are asked, “If we check for criminal records, are we going to find anything?” At the bottom of the application it says: Anyone who knowingly provides incorrect information, or incorrect information through omission of fact, can be subject to termination at any time. Then at the end of the interview, the prospective employer gives you a written form asking for your permission to run an extensive background check that will verify your National Insurance number or equivalent, criminal records, credit records and civil court records. Stories of pirates on the coast of Somalia and the Malacca Straights have in recent years grabbed headlines in the yachting world. However, more home-grown troubles – such as near tragedy on board one vessel where an apparently suicidal crew brandished a firearm or another where a crew member was allegedly involved in substance smuggling rather than abuse – has prompted some owners and managers to take a closer look at the crew they employ. Being a reasonably literate and numerate human being who probably won’t turn into an axe murderer isn’t enough for potential employers any more. Conducting a background check may even discover whether you’re a closet racist or have a criminal record for embezzlement.

So what is a background check?

 

A background check is the process of looking up official and commercial records about a person. This is often done when someone applies for a job that requires a higher level of responsibility such as a Captain, Chief Engineer or a Chief Stewardess. It is traditionally done by police forces, schools and hospitals but is now increasingly being used by yacht owners, yacht managers and yacht captains. Information usually includes the following: past employment, credit worthiness and criminal history. There are a number of different types of background checks – the most common of these is pre-employment screening. This is used to verify the accuracy of applicants’ claims as well as to discover any possible criminal history, workers’ compensation claims or employer sanctions. Employment screening can be a practical, low-cost way to significantly reduce employee theft and dishonesty and notably increase productivity and safety in yachting. Certain industries require employment checks on all employees. Examples of this include the banking, financial and security industries, childcare, healthcare and teaching industries. The level of background investigation may vary from industry to industry or position to position. Employers who actively screen their applicants before hiring also face less liability in the event of a workplace accident or crime.

Pre -employment screening is a primary way of eliminating or minimising negligent hiring liability. For yacht owners there are a small number of security and investigation companies that can be contracted when looking to conduct background checks on yacht crew. These organisations will actually perform the checks, supply the company with adverse action letters, and ensure legal compliance throughout the process. It is important to be selective about which pre-employment screening company you use. A legitimate company will be happy to explain the process to you. Most yacht owners choose to search the most common records such as criminal records, driving records and education verification. Other searches such as sex offender registry, yachting certificates verification, reference checks, credit reports and  Patriot Act searches are becoming increasingly common.

 

Yacht owners or captains should consider the position in question when determining which types of searches to include, and should always use the same searches for every applicant being considered for a specific job. The most common reason for conducting a background check is to confirm information found on an employment application or résumé/curriculum vitae. They may also be conducted as a way to further differentiate potential employees and pick the one the employer feels is best suited for the position. Checks are also required for those working in positions with special security concerns, such as Ship Security Officer or a helicopter pilot. The amount of information included on a check depends to a large degree on the sensitivity of the position for which it is conducted – for example, somebody seeking employment as a deckhand would be subject to far fewer requirements than somebody applying to work as a Chief Engineer on a 50-metre yacht. Yacht owners may want to identify potential crew who routinely file discrimination lawsuits. In recent years it has been alleged that in the United States employers who do work for the government do not like to hire whistleblowers with a history of filing “qui tam” false claims suits. Whether you own a large yacht, private aircraft or for that matter any commercial operation within the transportation sector almost all employees seek drivers and operational staff with clean driving records, that is  those without a history of accidents, drug and alcohol abuse. Why should these common-sense practices not apply to large yachts? Alcohol and drug testing has been around for a number of years and there have been some high-profile cases in recent years involving yacht owners and crew.

 

Drug testing is used for a variety of reasons: corporate ethics, measuring potential employee performance, and even keeping workers' compensation bonuses down. The five most common categories of recreational drugs are Cannabinoids, Amphetamine, Cocaine, Opiates – which includes morphine and heroin – and Benzodiazepines. There are two types of tests readily available. The first is by use of saliva sample; this indicates whether a drug has been taken within 20 minutes to 48 hours before testing. The speed of lab results does vary depending on where you are in the world, but generally you can have a result within 48 hours from a sample being taken. If the initial test proves positive then confirmation of the specific drug takes a further three to five working days. The second test is by use of hair sample. This is more of a lifestyle test and indicates drug abuse history of up to four months depending on length of hair. For those men who shave their heads hair samples from other body parts can be used. Gentlemen, you have been warned! The speed of lab result is usually three to five working days from time of collection; if the initial test is positive then confirmation of the drug type can take a further seven to ten working days from  collection. As a yacht owner or captain you must respect applicants’ privacy rights when conducting background checks. When you are making hiring decisions in particular for key crew positions such as a master, chief  engineer or chef, you might need a bit more information than your applicants provide. After all, some folks give false or incomplete  information in employment applications. And workers probably don't want you to know certain facts about their past that might disqualify them from getting a job. However, you do not have an unfettered right to dig into applicants’ personal affairs. All yacht crew have a right to privacy in certain personal matters, a right they can enforce by suing you if you pry too deeply. If you decide to conduct your own checks you must make sure your inquiries are related to the job. If you decide to do a background check for yacht crew, stick to information that is relevant to the job for which you are considering the worker. For example, if you are hiring a chef who will be responsible for large amounts of cash, you might reasonably check for past criminal convictions. If you are hiring a seasonal deckhand, however, a criminal background check is probably  nnecessary. Ask for consent. You are on safest legal ground if you ask the applicant, in writing, to consent to your background check. Explain clearly what you plan to check and how you will gather information. This gives applicants a chance to take themselves out of the running if there are things they don't want you to know. It also prevents applicants from later claiming that you unfairly invaded  their privacy. If an applicant refuses to consent to a reasonable request for information, you may legally decide not to hire the worker on that basis.

 

Depending on nationality, yacht crew are covered bythe Fair Credit Reporting Act in the US and the Data Protection Act in the UK; most EU countries have adopted a similar model to that of the UK. This in turn is covered by the European Trade  commission. There is a specific law that covers background checks by third parties in the United States and that law is the FCRA; it’s the same law that governs the credit-reporting industry, but it also covers a number of other kinds of consumer reports, one of which is the employment reporting and background checks.Among its many provisions, the FCRA and the Data Protection Act gives the following rights to yacht crew. The request for background checks must be on a separate document. This is usually referred to as the ‘Information release document’. This document must be separate from a job application or any other document. So, in other words, it must stand out and it must be easy to understand. If the applicant is turned down for any reason, they must be given an explanation for the employer's decision. Current EU and US guidelines do not override any  statutory requirement to keep crew records. While the original draft of the Data Protection Code contained guideline retention times for different categories of data, the final version provides only guidance for employers on developing a practice of standard retention times based on actual – rather than theoretical – need, leaving you, the yacht owner, to make your own decisions. It might be sensible to retain basic employment details, such as names, dates of birth, dates of employment and national insurance numbers indefinitely.

 

As far as other records are concerned, an employer must balance the risk of a future claim against the cost of the administration involved in retaining records and the possibility of an enforcement action or a claim for damages under the act. As an owner, captain or yacht manager there is currently an absence of specific guidance from the IMO or Flag States. Common sense must dictate how as owners you respond to these issues. The right to crew privacy, and the right to have data retained no longer than necessary, must be balanced with the needs to protect your family and guests from people who might have criminal tendencies.

 

 

 

 

Drum Cussac Contact: James Howard Higgins, Email: jhh@drum-cussac.com

Tel:+44 1202 853205