No Background Screening? Call Yourself ‘Defendant’

Every employer has a legal duty to exercise due diligence in hiring, says attorney Lester Rosen. What If you don’t do background screening? According to a recent California survey, Rosen says, employers lose 60 percent of negligent hiring cases with verdicts averaging about $3 million, and average settlements around $500,000 plus attorney fees.

An employer can be sued for negligent hiring if it hires someone who it knew, or in the exercise of reasonable care should have known, was dangerous, unsafe, dishonest, or unfit for the particular job.

Courts tend to assume that if you could have known, you should have known, says Rosen. So how much checking should you do? The jury will tell you, Rosen says.

Rosen, who is CEO of Employment Screening Resources in Novato, California, made his remarks at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC.

EEOC Implications of Criminal Records

The EEOC says that you cannot automatically disqualify an applicant based upon a criminal conviction without a business justification, taking into account the nature and gravity of the offense, nature of the job, and time elapsed, says Rosen.

Also, he says, be aware that some states and cities have “banned the box” to promote a second chance for convicted felons. (That is, they don’t permit a question about criminal records on application forms.) Their focus is getting people back to work, Rosen says. Yes, you too probably want to give people who have made mistakes a fair chance, but you also have to promote a safe workplace.

What about arrest records? Arrests are of limited use, Rosen says. You need to locate and evaluate underlying behaviors if possible.

Application Forms

It is critical, Rosen says, to specifically ask if the applicant has been convicted, or has pending charges (unless regulated by a “ban the box” rule). In addition:

  • Use the broadest legal language about both felonies and misdemeanors. Don’t leave out misdemeanors, Rosen says. Misdemeanors sound like petty crimes, but some serious crimes are misdemeanors, for example, some forms of assault or stalking.
  • Mention on the application form that a criminal conviction does not automatically eliminate a candidate from consideration.
  • Also state that any material lie or omission can constitute grounds to terminate hiring or employment.

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Past Employment Checks Are Critical

Past employment checks are as critical as criminal checks, Rosen says. Verify employment to determine where a person has been (even if you only get dates and job title), says Rosen. Otherwise you are hiring a stranger.

Look for unexplained gaps in past employment. Search out locations of former employers so you know where to search for criminal records. (Remember, Rosen says, there are over 10,000 courthouses in U.S.; you need to know where to search.)

If you can verify that a person was gainfully employed in the last 5-10 years, it is less likely that he or she spent long periods in custody, Rosen says.

Be aware, he adds, that about 40 states now provide some form of immunity for past employers giving good faith references. But even if you don’t succeed in getting reference information, just attempting to and documenting the effort demonstrates due diligence

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Parting Shot

To indicate the kind of people you’ll be dealing with if you don’t do checks, Rosen told of the client who, when admitting his guilt for a murder, said, “but look at all the people I haven’t killed.”

In tomorrow’s Advisor, three of Rosen’s myths concerning background checks, and some great news—your job descriptions are written and ready.

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