Attorney, author, and safe hiring expert Lester Rosen – founder and President of San Francisco, California-area a background check provider Employment Screening Resources (ESR) – exposed the leading myths associated with employment screening background checks to an audience this week at the 2011 Society for Human Resource Management (SHRM) Employment Law and Legislative Conference in Washington, D.C., according to a special report ‘Due Diligence Myths in Background Investigations’ on HR.BLR.com.
Rosen, author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ explained that employers have the legal duty to exercise due diligence in hiring and may be sued for “negligent hiring” if they hire workers who they knew – or in the exercise of reasonable care should have known – were dangerous, unsafe, or unfit for the job. He also cited a recent California survey that revealed employers lose 60 percent of negligent hiring cases with verdicts averaging about $3 million and average settlements around 500,000 plus attorney fees. Rosen then exposed the top three leading myths associated with background checks:
- Background Check Myth Number 1 – There is a national database available to private employers for checking criminal records or false education or employment credentials: Contrary to popular belief, Rosen said there is no such national database and, furthermore, Federal Bureau of Investigation (FBI) fingerprint checks are only available when mandated by law. In reality, the primary method for obtaining criminal records is to physically visit each relevant courthouse out of the approximately 10,000 courthouses in the United States with court records in over 3,200 jurisdictions. Rosen also cautioned employers about using commercial databases as a primary tool for records checks since there are substantial issues with accuracy, completeness, and timeliness. In addition, since false positives and false negatives are possible in such a system, criminal “hits” should be re-verified at the courthouse for accuracy and current status.
- Background Check Myth Number 2 – Due diligence does not mean perfection: Rosen also explained that – unless set by a statute for a particular industry – due diligence is a moving target determined by a jury based evidence in the trial concerning injury, foreseeable risk, duty of care, and causation. However, while employers only need to show that they did the best investigation that they could be expected to do, “high risk” employers such as firms that send workers into private homes have a higher duty of care. Rosen said that typical defenses won’t help employers if they have failed to conduct due diligence and that they should not try to claim that background checks would not have revealed any “red flags,” were too costly, that the applicant lied, or that other firms in their industry did not conduct background checks.
- Background Check Myth Number 3 – Employers can automatically disqualify an applicant based on a criminal conviction without a business justification: Rosen said that employers may not automatically deny employment based on a criminal conviction, since the Equal Employment Opportunity Commission (EEOC) requires employers to take into account the nature and gravity of the offense, the nature of the job, and the time elapsed since the offense. In addition, many states and cities have “banned the box” that job applicants are asked to check if they have a criminal conviction in an effort to promote equal employment opportunities for applicants with criminal pasts. However, lies on the application by the job candidate could be the grounds to deny employment.
The 2011 SHRM Employment Law and Legislative Conference is being held from March 14-16, 2011 in Washington, D.C. The special report ‘Due Diligence Myths in Background Investigations’ is available on HR.BLR.com at: http://hr.blr.com/HR-news/Staffing-Training/Background-Checks/Due-Diligence-Myths-in-Background-Investigations/.
For more information on background checks, due diligence, and safe hiring, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com. For more information about the ‘ESR Speaks’ background check training schedule featuring safe hiring expert Lester Rosen, visit http://www.esrcheck.com/Newsletter/ESR-Speaks/.
Founded in 1996 in the San Francisco, CA area with a mission to help both employers and employees maintain safe workplaces, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS). For more information about Employment Screening Resources (ESR), please visit http://www.ESRcheck.com or email ESR News Editor Thomas Ahearn at tahearn@ESRcheck.com.