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This newsletter is sent to clients of Employment Screening Resources (ESR) as well as employers, Human Resources and Security professionals, and law firms who have requested information on pre-employment screening, safe hiring, the FCRA and legal compliance. Please note that ESR's statements about any legal matters are not given or intended as legal advice but only general industry information. For specific legal advice, employers should contact their attorney. If this was sent in error, you can be removed from this mailing by simply using the “remove" feature at the end of the newsletter and you will not receive any future newsletters.
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September 2010 Vol. 10, No. 9
1. Negligent Hiring and the Death of Michael Jackson
According to a post on The Hollywood Reporter, Esq. blog, the family of deceased singer Michael Jackson has filed a lawsuit against event production company AEG Live and others claiming they are responsible for the pop idol's death because his contract with AEG for the planned "This Is It" tour created a legal duty to keep him healthy.
As part of the lawsuit, the Jackson family accuses AEG of the "negligent hiring" and retention of Dr. Conrad Murray to care for Jackson in advance of the concerts instead of his usual doctor, the blog notes. Murray later allegedly administered the drug Propofol to Jackson without necessary resuscitation equipment or nursing support, and the singer died with the drug in his system.
With regard to the 'Negligent Hiring' cause of action, the complaint filed in Los Angeles Superior Court on behalf of the family includes verbiage claiming that:
o In undertaking to hire Murray, AEG performed absolutely no diligence in investigating or checking into Murray's background, specialties, ability, or even whether he was insured, which it had a duty to do. In choosing to hire and employ a physician to treat Jackson, AEG undertook to act, and it needed to do so reasonably. AEG did not act reasonably and breached its duty.
o During the course of Murray's treatment, it became clear to AEG that Jackson was not doing well at all. AEG did nothing to terminate Murray and instead negligently retained him as an employee, and in so doing violated its duty of care. AEG insisted that Jackson continue treatment with Murray and receive no treatment from other physicians, a further breach of its duty of supervision.
Along with negligent hiring, training and supervision, the complaint calls for unspecified damages for breach of contract, fraud, and negligent infliction of emotional distress. The matter is still pending in court.
According to The Safe Hiring Manual - How To Keep Criminals, Terrorists, and Imposters Out of Your Workplace by Lester Rosen, founder of San Francisco area background check firm Employment Screening Resources (ESR), every employer carries the obligation - the duty - to exercise reasonable care for the safety of others when hiring. The legal description of the duty of care - "due diligence" - means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.
If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called "negligent hiring," which is the flip side of "due diligence." If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.
While most employers obviously will not hire applicants they know are dangerous or unfit for a job, it is the "should have known" part that gets employers into difficulties.
Sources:
http://thresq.hollywoodreporter.com/2010/09/michael-jackson-lawsuit-aeg.html
http://reporter.blogs.com/files/jackson-2.pdf
2. Employers Should Be Wary of Cheap or Instant Online Criminal Background Checks
ANumerous internet sites have sprung up in recent years promising cheap or instant background checks that deliver criminal information on anyone. These sites utilize a so-called "National Criminal database" and vendors of such databases typically claim to have compiled millions of records from every state so users can know if someone is a criminal at the click of a button. These databases appear to offer employers an instant criminal check at a very low price.
Although a multi-state records database can be a powerful tool when used by a qualified employment screening firm as part of an overall background check, anyone who thinks they are getting a real criminal check can be in for a rude awaking when they discover that such searches are far from the real thing. Applicants with criminal records can easily be missed, and people without reportable records can be incorrectly identified as criminals, both results carrying negative financial and legal implications for employers.
Anyone using these databases, especially for employment purposes, needs to understand the limitations and legal exposure associated with using them. If they don't, employers may find themselves embroiled in litigation. Here are just some of the issues:
In addition, before relying on a database search for employment, FCRA Section 613 must be followed. That section requires that if a criminal matter is found that can adversely affect employment, then a letter should be sent to the applicant by the agency providing the information, which many web sites certainly do not do for employers. This option is not even allowed under California law. The other option is to reconfirm all "hits" at the county court level to insure that the information is accurate, complete and up to date at the time it is reported.
Also, keep in mind that a criminal record should not be used to automatically disqualify an applicant, without taking into account the Equal Employment Opportunity Commission (EEOC) rules as to what is a job-related criminal offense. Otherwise, an employer may find themselves facing allegations of discrimination. In addition, the use of criminal records for employment is also intensely regulated by many states, and without professional guidance, employers may use information that is impermissible, again exposing an employer.
The bottom-line: These do it yourself "criminal "searches are not always as advertised. Unless you are a professional, such a search can easily lead an employer astray or get them into legal hot water. Even for non-employers that want to check out someone, such as someone that wants to screen a potential "date," it is critical to understand that these sites are NOT the real thing when it comes to criminal checks, since in many instances the search can have holes in them the size of Texas.
For more information on background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.
Source:
http://hr.toolbox.com/blogs/background-checks/beware-of-online-criminal-searchesthe-money-you-save-may-put-your-firm-at-risk-40906
3. Employment Applications and Questions about Past Criminal Convictions
From the ESR mailbox: Our HR department is changing our application form so that an applicant only has to answer questions about any criminal matter going back seven years. They say that this is required under the laws of many states, including California. Are they right?
Answer: The issue of whether employers can use a job application in order to ask about a job applicant's criminal record is getting complicated. For example, starting November 4, 2010, such questions are not permitted in one state, Massachusetts. For that reason, employers should have their legal department or employment lawyer double check the application form.
Although Employment Screening Resources (ESR) cannot provide legal advice, based upon commonly accepted industry practices, there is not really a good justification for a seven year limitation on applications.
First, the seven year rule is limited to just eleven states (California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Texas, and Washington). Nevada also has a form of a seven year rule, but it appears to apply to reports issued for credit purposes and not employment.
Of those states, there is broad agreement that the seven year rule for Texas and Colorado has been pre-empted by the federal Fair Credit Reporting Act (FCRA) because the rules were enacted too late to qualify for an exemption. A strong argument can also be made that it is pre-empted in California as well, although most firms still follow it.
Even for states with a seven year rule in effect, there is often an income exception, so that over a certain income level, a crime older then seven years can be reported. For example, Kansas, Maryland, Montana, Massachusetts, New Hampshire, and Washington waive the time limit if the applicant is reasonably expected to earn over $20,000 a year. So, as a practical matter, the limitation itself is very limited. California has no income exception, however.
Also, how the seven years is calculated can also get complicated. Seven years by no means actually means seven years. For example, a crime may have been committed more then 7 years ago, but if the person was still in custody within the seven years, it is likely reportable. Or a person committed a crime 9 years ago and violated parole or probation and spent a day in jail within the past seven years. That means the seven years clock starts over and it is reportable. The idea is that person must have been custody free for seven years. Generally speaking, being on parole or probation does not "toll" (or in other words stop) the seven year clock. It normally requires that an applicant be free of physical confinement.
Another critical point is that seven years is a reporting restriction is placed on a screening firm. Even for those states with a seven year rule, there is NO restriction upon an employer asking. Even if California, there is no requirement the employer limit the question to seven years.
The one other consideration, of course, is that going back too far can potentially create an Equal Employment Opportunity Commission (EEOC) issue because an old crime may be less relevant to a job (depending upon the nature and gravity of the of the crime and the nature of the job).
In some states, there are limits on asking about arrests that did not result in a conviction, as well as additional state specific limitations.
The bottom line is that such a limitation in the application does not appear to be mandated by sate or federal law. However, your firm's attorney is in the best position to give advice on this issue. For more information on what language to use in applications, visit http://www.esrcheck.com/articles/crime_and_employment_application.php
ESR Articles (click for more info)
The FCRA in 4 Easy Steps
Find out how to be in compliance with the FCRA
Criminal Records and Employment Applications
What questions should employers be asking?
10 Safe Hiring Tools
These tools don’t cost anything and promote a safe and profitable workplace
Negligent Hiring
What occurs when Due Diligence is not performed
Please feel free to contact Jared Callahan at ESR at 415-898-0044 or jcallahan@esrcheck.com if you have any questions or comments about the matters in this newsletter. Please note that ESR's statements about any legal matters are not given or intended as legal advice.
Employment Screening Resources (ESR)
www.ESRcheck.com
7110 Redwood Blvd., Suite C
Novato, CA 94945
415-898-0044
