Yearly Archives: 2008

Adverse Action: How To Do It and What It Is

Some employers have remarked that they are confused by the Adverse Action Process that is required under the federal Fair Credit Reporting Act (FCRA). The federal law kicks in when you use a Consumer Reporting Agency to perform a background check (known as a consumer report) and decide not to hire the applicant based on something in the report.

The adverse action process itself is simple. It involves sending TWO separate letters to the applicant, along with the consumer report and a summary of their rights, so that the applicant has time to review the report for errors. The timing of the two letters would be such that the applicant has meaningful opportunity to review, reflect and react to the report in order to dispute any perceived inaccuracies in the report.

It is the responsibility of the Consumer Reporting Agency to reinvestigate any inaccurate information in the report.

The Adverse Action Process

The first letter — Pre-Adverse Action Letter — is sent to the applicant saying that his or her application is being considered and asking the applicant to review the report so that a hiring decision can be made. A copy of the report is sent with the Pre-Adverse Action letter. The letter also includes a statement of rights that has been prepared by the Federal Trade Commission. Then the applicant is given a period of time to review the report and to dispute any perceived inaccuracies with the background firm.

If the applicant has not disputed the contents of the report within a reasonable time, and the employer wants to make the hiring decision final, then the Adverse Action Letter itself is sent. That letter states that the applicant is no longer being considered for employment. A good practice is to send another copy of the Background Screening Report with the Adverse Action Letter, as well as the statement of rights, so there can never be a question of the applicant having received his or her report.

Although the FCRA law does not give a definite time interval between the first letter and the second, the intent of the law is to give the applicant sufficient time to review the report. Allowing a period as long as ten (10) business days between the first letter and the second letter should provide sufficient time to receive and react to the first letter before the second letter is sent.

Even though the Adverse Action Process has been initiated, the employer is under no requirement to hold the job open for the applicant. The employer can proceed with considering and hiring another candidate.

If the applicant disputes the contents of the report, and the dispute is successful, then the employer is always free to consider the applicant again for any open position. That would be a business decision. In other words, using the Adverse Action is not an impediment to the normal hiring process. Although it is an employer’s duty to send these letters, many employers delegate that task to their employment screening background firm.

For more information please see the article: ‘The FCRA in Four Easy Steps’ by ESR President Lester Rosen at http://www.esrcheck.com/articles/article9.php.

ESR has a quick and very responsive dispute resolution process if the applicant disputes a report. ESR feels strongly that both the employer and the applicant deserve an accurate report.

Use of Workers’ Compensation Records: Extreme Caution Advised

Employers have become very aware of the high costs of compensation claims. The loss to American business from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workers’ compensation claims.

At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.

The bottom line is that an employer cannot request workers’ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim.

Employers are well-advised to contact a labor lawyer before seeking to obtain workers’ compensation records. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA, such as a conditional job offer and medical review form.

The following brief summary describes the major points involved in obtaining and using workers’ compensation records.

  1. There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public, period. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release. Because they are familiar with state regulations, background screening firms can assist employers in obtaining these records.
  2. Under the ADA, an employer may not inquire about an applicant’s medical condition or past workers’ compensation claims until a conditional job offer has been extended. A conditional job offer means that a person had been made an offer of employment, subject to certain conditions such as a job-related medical review.
  3. Any questioning in a job interview should be restricted to whether the person can perform the essential job functions with, or without, reasonable accommodation. That is another good reason to have well-written job descriptions so it is clear in an interview exactly what the job entails.
  4. If a candidate discloses a disability, then there should not be any follow-up. Questioning should be limited to whether that applicant can perform the job.
  5. If a history of filing workers’ compensation claims is found, then the offer may only be rescinded under very limited circumstances, such as:
    1. The applicant has lied about a workers’ compensation history or medical condition, usually during a medical examination;
    2. The applicant has a history of filing false claims;
    3. The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;
    4. The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.
  6. If the applicant has lied on a medical questionnaire, or to a doctor performing a pre-employment physical, then the employer may be justified in rescinding the job offer based upon dishonesty. If an applicant has a history of multiple claims that have been denied, then an employer may be justified in rescinding the offer based upon a history of dishonest conduct. The reason is based upon an inference of fraud, not disability. Some firms contend that a workers’ compensation record may also be used to determine the truthfulness of information on a job application on the theory that an applicant may try to hide a past employer where a claim was filed. However, even with this justification, if used, the best practice may be to review the records post-hire only.

What does all this mean? Before attempting to utilize a search for workers’ compensation claims as part of a screening program, an employer is well-advised to consult with their attorney.

U.S. Conference of Mayors Holds National Summit on Issue of Re-Entry of Ex-offenders into the Workforce

The U.S. Conference of Mayors announced a conference held in February on the issue of mass incarceration and the need to get ex-offenders employed. Featuring mayors form major American cities, including New York Mayor Michael Bloomberg, the announced purpose of the conference was to help former inmates find jobs after their release and to avoid going back to jail.

According the press release:

With 1 in 31 American adults in prison, jail, on parole or probation, the US prison system is in crisis. Hundreds of prisons nationwide are overcrowded to the breaking point, and high recidivism rates are largely to blame: 39 percent of prisoners have served three or more sentences. This cycling in and out of prisons is taking a devastating economic toll on already-vulnerable urban communities. At this critical moment, policymakers and experts are determined to come together and develop concrete solutions to making sure that people who leave prison do not reoffend and go back.

This conference underscores an emerging issue of how society deals with individuals with criminal records. On one hand, if an employer hires someone for a job with an unsuitable criminal record, and some harm occurs, the employer may face the prospects of a negligent hiring lawsuit.

On the other hand, without a job, an ex-offender is likely to end up back in custody, and unless we as a society would rather build more prisons than schools and hospitals, some way is needed for ex-offenders to get back to work. In addition, there is an increased likeliness going forward of discrimination lawsuits where ex-offenders were denied employment without a business justification.

Background screening firms are often caught in the middle of this debate. Although a screening firm does not make the hiring decision, screening firms are hired by employers to research potential criminal records. A background screening firm should clearly advise employers that there are limitations on the use of criminal records. There are various state laws that limit what an employer can consider. In addition, the federal Equal Employment Opportunities Commission has made it clear that a criminal record should only be used where there is a business justification. There are also special rules governing arrests that did not result in a conviction.

For more information on the use of criminal records, contact Jared Callahan at ESR by e-mail at jcallahan@esrcheck.com for more information.

In addition, ESR has prepared a special report for the benefit of ex-offenders on how to get back into the workforce called, Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce It has been reprinted online and is available at: http://www.privacyrights.org/ar/rosencrim.htm

ESR in the News! ESR quoted in SHRM Magazine

ESR has recently been quoted ESR in the February, 2007 issue of HR Magazine published by SHRM in an article entitled, “Ground Rules on Background Checks.”

ESR president Lester S Rosen is quoted on the formation for the trade association for the screening industry, The National Association of Professional Background Screeners, or NAPBS.

According to the article:

Indeed, 85 percent of HR professionals surveyed reported that their organizations conduct–or hire outside agencies to conduct–background investigations on potential employees, according to separate 2006 and 2004 polls addressing background-checking practices among members of the Society for Human Resource Management (SHRM). That’s up from 51 percent who said they did so in 1996. “A perfect storm of events grew the industry, and it grew largely without regulation, standardization, organization or coordination,” says Lester Rosen, an attorney and founder of Employment Screening Resources Inc., a pre-employment background-screening company in Novato, Calif. He chaired the steering committee that founded NAPBS. “It truly was the ‘Wild West’ in a lot of ways,” he says.

Taming that territory was a tall order, admits Rosen, author of The Safe Hiring Manual: The Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace (Facts on Demand Press, 2007).

The online version provides a link to an ESR site with a suggested RFP (Request for Proposal) form. See: http://www.esrcheck.com/backgroundscreeningrfp.php

ESR 2008 Schedule

February 28, 2007 Silicon Valley, CA Using the Internet and Social Networking Sites to Find and Screen Applicants” Santa Clara County Employer Advisory Group, Biltmore hotel, Santa Clara, CA

March 6, 2008 Kennedy Information National Audio Conference–“Background Checks and Recruiting — Avoiding Negligent Hiring.” Details to follow

March 26, 2008 Los Angeles, CA “Pre-employment Screening: Best Practices and Legal Compliance” HR STAR Conference

April 3, 2008 San Francisco, CA “Pre-Employment Screening and Background Checks” San Francisco Employer Advisory Council (EAC)

May 15, 2007 Las Vegas, NV Using the Internet and Social Networking Sites to Find and Screen Applicants” Kennedy Information’s Recruiting 2008 Conference and Expo, Las Vegas Hilton

June 5, 2008 Cooperstown, NY “Cutting Edge Issues and Best Practices in Background Checks and Employment Screening for Hospitals and Healthcare Organizations” Symposium sponsored by the Health Association of New York State (HANYS)

June 12, 2008 Santa Cruz, CA “Pre-employment Screening: Best Practices and Legal Compliance,” Santa Cruz EAC (Aptos Golf Course)

June 23/25, 2008 Chicago, Il “Negligent Hiring Mock Trial” and “Caution! Using the Internet and Social Networking Sites to Screen Applicants”. SHRM 60th Annual National Conference and Exposition.

July 14, 2007 Boston, MA “Preventing Employee Fraud at the Point of Entry: Legal and Effective Pre-employment Screening” National Conference for the Association of Certified Fraud Examiners (ACFE)

July 16, 2008 San Francisco, CA Pre-employment Screening: Best Practices and Legal Compliance” HR STAR Conference

July 18, 2008 Stockton, CA “Pre-Employment Screening and Background Checks” Stockton Employer Advisory Council (EAC), Stockton, CA

August 28/29 2008 New Delhi, India “International Background Screening: Best Practices in the US and in India and the Pacific Rim. The Second Annual International Pre-employment Screening Conference, The Taj Mahal Hotel, New Delhi, India

Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to U.S. employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can now ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

  • Convenient 24/7/365 availability through any online connection
  • 21 self-paced lessons on Safe Hiring practices
  • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
  • Review quizzes after each lesson featuring more than 300 questions about safe hiring
  • Easy access to useful Safe Hiring web-links
  • Sample safe hiring forms to help guide your own form development
  • Industry certification in Safe Hiring
  • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The $395 course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


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

Ambiguous References—the Fine Art of Polite Negative References

Who says there is no humor in the hiring process? Employers will enjoy reading the book, “Lexicon of Intentionally Ambiguous Recommendations (LIAR),” by Robert Thornton and available on Amazon. The book gives a whole new meaning to the term “damned with faint praise.” It answers the age old question of how to give a truthful recommendation without getting sued.

Here are just a few examples from this very clever book:

“Her ability is deceiving” (She lies, cheats and steals)

“No salary would be too much for him.” (He is not worth anything)

“It was a pleasure working with her the short time I did.” (Thankfully it was not longer)

“I am pleased to say that this candidate is a former colleague of mine” (I can’t tell you how happy I am that she left our firm)

“He’s a man of many convictions.” (He’s got a record a mile long).

“She gives every appearance of being a reliable, conscientious employee” (But appearances can be deceiving)

Any employers or HR or Security Professionals that want to share their own favorite way of giving ambiguous references, please send them to Jared Callahan at ESR by e-mail at jcallahan@esrcheck.com

Screening Vendors and Temporary Employees

A recent article in the SHRM 2008 Staffing Management Library underscores the need to screen even temporary hires. Although many employers have well thought out programs for their regular employees, temporary employees form staffing firms, 1099 workers or vendors pose similar risks. The article explained why screening temporary employees is critical, and offers suggestions on how a firm can protect itself.

The article also quotes ESR President Lester S. Rosen:

“Even if you have a person on a short-term assignment, you’re exposed,” added attorney Lester S. Rosen, president and CEO of the Novato, Calif.-based firm Employment Screening Resources. “They have the keys to the kingdom. Once they’re inside your building, they have access to your files and have the potential to do great harm.” ….

Rosen said that while staffing vendors “have traditionally not engaged in a great deal of screening because it slows down the placement time and adds to the cost,” they need to understand that they have “a huge risk” if they send unscreened employees to a workplace.

“They have to realize that every placement they make is potentially a game of Russian Roulette that can put them out of business,” he explained. “If you’re a staffing vendor, it only takes one bad hire to lose your reputation, lose a client and [potentially to] get sued.”

And even though an extended worker may be getting a paycheck from the staffing vendor, under “co-employment” law, employers may still be at risk of a negligent hiring suit if something goes wrong.

“If [temporary employees] cause a hostile workplace, hurt a member of the public or attack a co-worker, arguably employers are just as liable as they would be if this were a full-time, regular employee,” Rosen said.

The fact that the staffing vendor said it did background checks may not be much of a defense for an employer if the check was inadequate or ineffective. For this reason, it pays to do adequate due diligence to head off any potential lawsuits down the road.

After all, Rosen said, “Even the CIA will, every so often, hire a spy or a crook.”

The article discusses the need to evaluate the risks involved in utilizing an extended workforce and to develop an appropriate screening program. The screening may be performed by the same firm that checks new applicants. If done by the staffing vendor’s firm, then the employer can require that the same protocols be used that it uses internally.

For a full copy of the article, see http://www.shrm.org/ema/library_published/nonIC/CMS_024438.asp#TopOfPage

Contact Jared Callahan at ESR by phone at 415-898-0044 or e-mail at jcallahan@esrcheck.com for more information.

International Employment and Education Verifications

Employers have long recognized that conducting due diligence on new hires is a mission- critical task. Firms cannot afford to be sidetracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers can be the subject of lawsuits for negligent hiring if they hire someone that they should have known, through the exercise of due diligence, was dangerous, unfit or unqualified.

However, with the mobility of workers across international borders, it is no longer adequate to conduct these checks just in the United States. A 2000 government study shows that 11.5% of the population consists of immigrants. In addition, an increasing number of workers have spent part of their professional career abroad. The number of countries from which employers seek additional information about applicants is expansive, and includes India, China, the Philippines, France, Germany, Russia, Brazil, Mexico, Australia, Japan and Canada, among others.

Because of the perceived difficulty in performing international employment screening, some employers have not attempted to verify international credentials or to perform foreign criminal checks. However, the mere fact that information may be more difficult to obtain from outside of the U.S. does not relieve an employer of their due diligence obligation.

Nor can employers simply assume that the U.S. government has conducted background checks if the worker was issued a visa. After the events of 9/11, the U.S. has increased checks on foreign visitors and on workers on government “watch lists.” However, the government checks are generally not aimed at verifying a credential or checking for criminal records for employment purposes.

Education

Verification of an educational degree earned abroad is critical to verify credentials and to avoid fraud. An employer needs to determine if an applicant in fact attended the school claimed and received the degree claimed. Statistics show that education fraud can run as high as 20%. The employer also needs to determine if the school is accredited and authentic. The world is awash with phony schools and worthless diplomas. If the employer is not familiar with a school, the employer should conduct its own research. A legitimate school will often have an e-mail address or phone number so that they can be contacted to verify a degree.

Employment

Foreign employment can also be verified by contacting the employer even though they are in a foreign country. Often such calls will be made in the middle of the night due to time differences. The critical step is to obtain as much information about the past employer as possible from the applicant. If the employer does not speak English, an interpreter may be needed.

In order to assist employers in the requirements worldwide, ESR has published a helpful chart showing what is required in each country around the world. See:

http://www.esrcheck.com/internationalscreening.php

In order to comply with international data and privacy protection laws, ESR does not send personal information offshore. The verifications are conducted from the U.S. The only exceptions are certain countries referred to as “Red Zones,” where due to unique circumstances, a local researcher may be needed.

In some countries, verifications can be especially difficult due to problems in that country with communications or other barriers. In the event a country does not utilize the English alphabet or an employer or school cannot communicate in English, it may be necessary to request applicant information in the language of that country. ESR provides forms in a number of languages, such as Arabic, Chinese, Japanese, Korean, Italian, Spanish, Russian, French and German to name a few.

Contact Jared Callahan at ESR by phone at 415-898-0044 or e-mail at jcallahan@esrcheck.com for more information.

ESR 2008 Speaking and Training Dates

ESR 2008 Schedule

February 7, 2008 IPMA HR audio conference–“Avoid Negligent Hiring–New Developments, Best Practices and Legal Compliance.” Details to follow

February 28, 2007 Silicon Valley, CA “Using the Internet and Social Networking Sites to Find and Screen Applicants” Santa Clara County Employer Advisory Group, Biltmore hotel, Santa Clara, CA

March 6, 2008 Kennedy Information National Audio Conference–“Background Checks and Recruiting — Avoiding Negligent Hiring.” Details to follow

March 26, 2008 Los Angeles, CA “Pre-employment Screening: Best Practices and Legal Compliance” HR STAR Conference

April 3, 2008 San Francisco, CA “Pre-Employment Screening and Background Checks” San Francisco Employer Advisory Council (EAC)

May 15, 2007 Las Vegas, NV “Using the Internet and Social Networking Sites to Find and Screen Applicants” Kennedy Information’s Recruiting 2008 Conference and Expo, Las Vegas Hilton

June 5, 2008 Cooperstown, NY “Cutting Edge Issues and Best Practices in Background Checks and Employment Screening for Hospitals and Healthcare Organizations” Symposium sponsored by the Health Association of New York State (HANYS)

June 23/25, 2008 Chicago, Il “Negligent Hiring Mock Trial” and “Caution! Using the Internet and Social Networking Sites to Screen Applicants”. SHRM 60th Annual National Conference and Exposition.

July 16, 2008 San Francisco, CA “Pre-employment Screening: Best Practices and Legal Compliance” HR STAR Conference

July 18, 2008 Stockton, CA “Pre-Employment Screening and Background Checks” Stockton Employer Advisory Council (EAC), Stockton, CA

August 28/29 2008 New Delhi, India “International Background Screening: Best Practices in the US and in India and the Pacific Rim.” The Second Annual International Pre-employment Screening Conference, The Taj Mahal Hotel, New Delhi, India

Contact ESR for further details. The ESR 2008 Speaking schedule will be available shortly.

ESR is pleased to announce new services that are available to US employers:

  1. In-depth Searches and Litigation Support ESR has introduced a new service, an “Integrity Check,” for businesses that need in-depth research on partners, key executives, prospective members of a Board of Directors, and other highly sensitive positions, It is also ideal for law firms for litigation preparation. See: http://www.esrcheck.com/IntegrityCheck.php
  2. Vendor Checks ESR has introduced a new program to allow businesses to check their vendors. Businesses who would never allow an employee onsite without due diligence, can now ensure that the same due diligence is applied to vendors, independent contracts or temporary employees. For more information, contact Jared Callahan at jcallahan@ESRcheck.com or at 415-898-0044, ext. 240.

ESR announces that the Safe Hiring Certification Training is now available in four separate mini-courses, in addition to the intensive 30 Hour course. The smaller course allows participants to focus in on just those areas of immediate interest and need. This is the first and only online educational and professional development course designed for employers, human resources and security professionals, and anyone responsible for risk management and due diligence in hiring.

The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work.

Features of this course include:

  • Convenient 24/7/365 availability through any online connection
  • 21 self-paced lessons on Safe Hiring practices
  • A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
  • Review quizzes after each lesson featuring more than 300 questions about safe hiring
  • Easy access to useful Safe Hiring web-links
  • Sample safe hiring forms to help guide your own form development
  • Industry certification in Safe Hiring
  • Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)

Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective safe hiring program, including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The $395 course is offered at no charge to ESR clients.

The course is available at http://esr.coursehost.com

More information is available at: http://www.esrcheck.com/ESRonlineSafeHiringCourse.php

  • ESR wrote the book on background checks! – The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, “The Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,” has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.

Employment Screening Resources (ESR) Rated Top Background Screening Firm in First Independent Industry Study. See the Press Release


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

An Employer’s Duty of Care Increases with Risk

The following excerpt from the “Safe Hiring Manual” discusses the duty of care in more detail:

The injured party must show there is some connection or relationship between itself and the employer, so the employer owes a duty of care. This can occur in numerous situations, such as a co-worker on the job, a member of the public in a location where customers are expected to have contact with employees, tenants in an apartment building injured by a maintenance worker, and other situations where the victim and the dangerous employee are expected to come into contact. In other words, an employer breaches a duty of care if it creates a situation where a third party is expected to be brought into contact with the employee who causes the injury, under conditions for which there is an opportunity for an injury to occur. It does not matter that the particular injury was foreseeable, just that any injury was foreseeable.

Certain employers have a higher duty of care because of the unique situations of the job. An employer’s duty of care will increase with the degree of risk involved with the position For example, consider the nature of the authority and position of trust a security guard holds. Many courts impose an even higher standard of care on a security guard business than other types of employers since there is a greater likelihood of harm to third parties. Welsh Mfg., Div. of Textron, Inc. v. Pinkerton’s, Inc., 474 A.2d 436 (R.I. 1984). In other words, when the job enables a person to act under some color of authority, a greater risk is involved because a person can potentially abuse that authority.

Similarly, courts have held employers who send workers into people’s homes to a higher standard. This is on the theory that when an employer hires an employee who is given a unique opportunity to commit a crime, the employer has a higher duty of care. Examples are firms that clean carpets, deliver or fix appliances, or perform pest control services in a home. An example is a homeowner who brought suit against the exterminating service she hired when one of its employees raped her in her home. Smith v. Orkin Exterminating Co., Inc., 540 So.2d 363 (La.App. 1st Cir. 1989).

Other examples of higher duties of care can be medical professionals, home health care agencies or childcare workers that serve a vulnerable population particularly at risk. Another example is a worker hired in a call center who has access to sensitive financial information such as credit card numbers, or personal information such as SSN’s.

For more information about the Safe Hiring Manual, visit http://esrcheck.com/SafeHiringManual.php

From the Courts: Los Angeles Jury Awards $12 Million Verdict Against Apartment Owners for Negligent Hirin

According to news reports on January 18, 2008, a Los Angeles jury awarded a $12 million verdict against an apartment owner that hired a maintenance man without a background check who then raped and murdered a 30-year-old tenant. The maintenance man was a convicted felon and registered sex offender who was given keys and access to all apartments in the complex.

The wrongful death case, brought by the victim’s family, alleged that the maintenance man was the perpetrator, and that a background check would have revealed his criminal past.

The verdict underscores again the value of background checks in protecting human life. For a minimal cost, the apartment owners could have easily discovered the criminal record before handing a registered sex offender the keys that allowed access to evey apartment and putting numerous people at risk. By failing to exercise due diligence in hiring, employers open themselves up to this type of negligent hiring lawsuit.

In addition, even businesses that only hire occasionally have easy access to background checks. ESR for example has a small business division, where a small employer can go online and use their credit card for a background check in a very user-friendly system. See: http://www.esrcheck.com/smallbizdivision.php

In this type of case, the duty to conduct a background check was especially critical because of the potential and foreseeable risk to human life if the keys to every apartment were given to the wrong person. See the next article of this newsletter for a discussion of risk and the increased need to conduct due diligence in hiring. http://www.mercurynews.com:80/breakingnews/ci_8012071