All posts by Les Rosen

Negligent hiring and retention leading causes of employment lawsuits

A recent article in the Connecticut Law Tribune re-enforces what ESR has been telling employers for some time—that lawsuits for negligent hiring and negligent retention are among the most common claims against employers.

Per the articles, “The difference between the hiring and retention claims is when the employer became aware of a threatening employee; often, the arguments are that employers inadequately screened job applicants or failed to act on complaints about an employee who later committed a violent act.”

The story concern workplace violence and employee behavior that can be hostile, threatening or violent.  This can lead to lawsuits seeking damages for emotional distress, a hostile workplace all the way to damages stemming form violence where a person is the victim of a workplace crime.  The article noted that, “In a bad economy, stress increases and people’s fuses get shorter.”

The article cites a study in the 1990s, where “liability expert Norman D. Bates conducted a study that found workplace violence tort cases averaged $500,000 per settlement and a $3 million per jury verdict.”

According to the article:

“The potential for litigation seems to be high, based on U.S. Department of Labor statistics. On average, more than 2 million acts of violence occur in the workplace every year. When it comes to assaults, women are targeted at a much higher rate than men, both in Connecticut and nationally. From 2005-07, the U.S. Department of Labor tracked 1,250 non-fatal workplace assaults in Connecticut, and women were the targets in 77 percent of those cases. On the national level during the same period, women were targeted in 63 percent of the more than 47,000 non-fatal assaults.”

The article discussed that while many employers are focused on preventing workplace homicides, there are many lesser acts of hostility, such as workplace intimidation, bullying, sexual harassment and psychological abuse that can be red flags for future violence that also need to be addressed.

The article suggested solution that employers can utilize to minimize the chances of a lawsuit stemming from workplace hostility and violence.

See:   Taking Aim At Workplace Disputes at http://www.ctlawtribune.com/getarticle.aspx?ID=35073

California Background Checks and the Recession and Court Closures

According to the web site for the California courts, there will be monthly court closures.  The site indicates that: 

Due to the unprecedented statewide fiscal crisis, the Supreme Court of California, the Courts of Appeal, and all superior courts will be closed the third Wednesday of every month, beginning September 16, 2009. See: http://www.courtinfo.ca.gov/courts/supreme/ 

The impact for employers is that California background checks will be delayed by one day where a search is required for a California court.  Where an employer is also waiting for an educational or employment verification as well, the closure hopefully will not delay the overall report, since a report can only be completed as fast as each of the individual components.  Nevertheless, the court closures may potentially affect some employers seeking to fill a job quickly.

ESR will keep employers notified of any changes in the court’s policy, Employer may also encounter similar recession caused court decays elsewhere in the U.S.

Employment Screening Expert Lester Rosen To Present At National Recruiting Conference in Chicago

Employment Screening Resources,  a leading international employment screening background checking firm headquartered in the San Francisco area, announced that its president, Lester Rosen, will be presenting before the combined KennedyInfo/Onrec 2009 Recruiting Conference and Expo in Chicago, Illinois on November 3, 2009. 

This national recruiting conference brings together online recruiting leaders and productivity solution providers from around the globe to push the boundaries of online recruitment solutions.  See: http://www.onrec.com/conferences/031109/schedule.html

Mr. Rosen will be addressing, “Don’t Play Recruiting Russian Roulette: Hot Issues, Trends and Current Developments in Background Check.”  

 “Ensuring that candidates are qualified and bona fide are critical element of the recruiting process,” commented Rosen. “I am very pleased to have the opportunity to participate in this prestigious conference and to share information on the latest trends and developments relating to due diligence in hiring to assist recruiters in avoiding hiring lawsuits just waiting to happen.” 

Mr. Rosen, who is also an attorney, is a nationally recognized, expert, on employments screening background checks.  He is a writer and speaker on the Fair Credit Reporting Act (FCRA), pre-employment screening, and safe hiring issues. In addition, Mr. Rosen is the author of the first comprehensive book on employment screening background checks, “The Safe Hiring Manual Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” He also wrote, “The Safe Hiring Audit.”

 Mr. Rosen’s speaking appearances have included numerous national and statewide conferences.   He has testified in the California, Florida  and Arkansas Superior Court as an expert witness on issues surrounding safe hiring and due diligence. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the screening industry, and served as the first co-chairman in 2004. 

More information about Employment Screening Resources can be found at www.ESRcheck.com

Background Checks and Electronic References

In the never ending efforts by employers to identify candidates that are a good fit and qualified, a new internet tool has been developed to allow employers to utilize email to accelerate the process of obtaining references and assessments from past supervisors and others that know the applicant. The best example is www.Checkster.com

Questions have arisen as to how such a tool is related to the background screening process that employers utilize in order to exercise due diligence.  In fact, the two processes, although related in some ways, are entirely separate workflows that occur at different times in the hiring process and for different reasons.

Internet based references can be utilized by an employer to whittle down the field of candidates and to help an employer decide whom to hire.  Background checks occur after an employer has made a tentative decision, and needs to determine whether there is any reason NOT to hire an applicant.

When past employment checks are done as part of the background check process, the purpose is to verify that the employer actually exists and to independently verify the core details of employment, such as job title and dates.  In other words, there is a large difference between obtaining references before a hiring decsion is made, which are a qualitative measure of an applicant’s fit and abilities, and factual verification of an applicant’s employment history, which is a critical due diligence task.  Both processes can be useful in the quest to select the best candidates to hire and to avoid bad choices.  However, electronic references cannot be considered due diligence, given that they are so easily faked and depends entirely upon the applciant giving good data in the first place.

Credit Reports in California

The California legislature has once again passed a bill restricting the use of credit reports, even though a substantially similar measure was vetoed by the Governor in 2008. See; http://www.esrcheck.com/newsletter/archives/September_2008.php 

The bill, AB943, seeks to severely limit the use of credit reports in California for employment purposes.  For private employers, a credit report could not be utilized unless “the information is (1) substantially job-related, meaning that the position of the person for whom the report is sought has access to money, other assets, or confidential information, and (2) the position of the person for which the person is sought is a managerial position…”  There is an exceptin where the “ position for which the information contained in the report is required to be disclosed by law or to be obtained by the employer.”

The problem for employers is that individuals working in accounting departments or other areas of a business that have access to cash but are not managers could not be the subject of credit reports.  A credit report is a tool that can help employers avoid embezzlers and identity thieves.  On the other hand, there are a number of reasons that employers should approach credit reports with caution, and only use them where there is a clear business justification in a manner that is fair and resonable. It should be noted that employment credit reports do NOT contain a credit score. 

ESR has written a long article about the current use of credit reports. See: http://www.recruitingtrends.com/article/ART637372?C=96gBTrVyd3KtvBhw

As soon as the Governor makes a decision on this bill, ESR clients will be notified immediately.

Background Checks and Employment Applications

Cup of Coffee with that Criminal Conviction? Starbucks Case Underscores Importance of Well-Crafted Employment Application

A recent California appellate court case, Starbucks Corporation v. Lord, addressed the issue of how applicants are asked about criminal records on an application form.  A class action was filed against Starbucks Corporation on behalf of 135,000 unsuccessful job applicants on the basis that the Starbuck “application contains an ‘illegal question’ about prior marijuana convictions that are more than two years old.”  The lawsuit was claiming $200 per applicant, which meant Starbucks was facing a potential exposure of $26 million dollars.

On the application form Starbucks asked, “Have you ever been convicted of a crime in the last seven (7) years?”  It then states, “If Yes, list convictions that are a matter of public record (arrests are not convictions). A conviction will not necessarily disqualify you for employment.”

On the reverse side of the application, just before the signature line, Starbucks clarified the criminal question with a disclaimer that reflects protections afforded job applicants under California Labor Code sections 432.7 and 432.8:

“CALIFORNIA APPLCIANTS ONLY: Applicants may omit any conviction for the possession of marijuana (except for convictions for the possession of marijuana on school grounds or possession of concentrated cannabis) that are more than two (2) years old, and any information concerning a referral to, and participation in, any pre-trial or post trial diversion program.” 

The disclaimer however, was the very last sentence in a 346 word paragraph that went into other areas, including employment being at will, release of information, misrepresentations in the application and even disclaimers about Maryland and Massachusetts.  

The plaintiffs were concerned that since the disclaimer was physically separated from the question about past crimes and was essentially buried in the fine print, those applicants either would “overlook the disclaimer, or would not want to go back and cross out their previous responses, or ask for a clear copy.”

The Court agreed that the there was an issue whether the “one-size-fits-all style” of applications used was ambiguous or not.

However, the court also found that two of the plaintiffs in the case, in fact, were not harmed by any ambiguity since they both testified that they understood the question and had no drug history anyway.  Because there was no one suing that had actually been harmed, the Court ended the case in Starbucks favor. 

The Court discussed how allowing these kinds of suits by plaintiffs that were not actually harmed would potentially “create a whole new category of employment-professional job seekers, whose quest is to voluntarily find (and fill out) job applications which they know to be defective solely for the purpose of pursing litigation.  This is not the law in California.”

As a result of this case, a California employer should review their application form with their attorney or Human Resources for legal compliance. 

For information on the use of application forms as a powerful tool in hiring the best and safest employees, see:  http://www.esrcheck.com/articles/ and review the section on Employmetn Applications.

Background Check Expert Article on Credit Reports

RecruitingTrends, a leading website for recruitment and talent management by KennedyInfo, has published a column by ESR president Lester Rosen on, “Credit Reports and Employment: Myths and Facts.” 

The article covers myths and reality on credit reports, and is a how-to guide for recruiters and employers on the topic.  It also has helpful information for job applicants. There is a great deal of misinformation on the Internet about credit reports and job hunting. However, job applicants have enough to worry about without having to deal with the stress of misconceptions about credit reports and how it may affect getting a job.  Employers also have questions regarding how to use credit reports effectively and legally. 

Mr. Rosen has been recognized by RecruitingTrends as a thought-leader in the human capital space, and is a regular contributor to the web site.  Mr. Rosen has testified as an expert witness on background checks and employment screening, and has written the first comprehensive book on the topic, “The Safe Hiring Manual.”   

See the column at:  http://www.recruitingtrends.com/article/ART637372?C=96gBTrVyd3KtvBhw

Background Checks for Small and Medium Business Owners

Its becoming a familiar story in the news: a small or medium business owner hires a new employee, fails to perform a background check or check references, and only after a crime has been committed does the business find out about the employee’s serious criminal record. By then, it can be too late. 

Hiring a person with a criminal record can lead to workplace violence, theft, and embezzlement and business disruptions. And in some cases, the cost of hiring a criminal can mean financial ruin, the end of the business itself, or injury and even death for co-workers, customers or innocent bystanders. 

There are millions of small and medium businesses in America, and yet it is estimated that only a small amount take meaningful precautions to know exactly who they are hiring.  The problem of course is that an employer of any size has an obligation to take reasonable steps in the hiring process to avoid hiring someone who they either knew, or in the exercise of reasonable care, should have known was dangerous or unfit for a particular job.  That is called “due diligence.” If an employer violates that duty, they can be sued for “negligent hiring.”  Employers generally do not hire someone that they know is dangerous or unfit for a job. It is the “should have know” that creates the difficulty.  Without taking steps to hire intelligently, it is almost a statistical certainty that an employer will hire someone with a criminal record that should have been considered in the hiring process. 

For many small and medium business owners, the time, money and effort for a background check can seem overwhelming. Being a business owner is one of the toughest jobs in America. Background checks can seem like a waste of time and money, particularly if the business had never had a problem in the past. Unfortunately, it only takes one bad hire to ruin a small business or to ruin someone else’s life. 

The good news is that there are five easy and common sense steps an employer can take immediately. These five steps take practically no time and the cost very little, especailly compared ot the risk of not doing anything. There is no reason that any small business has to hire blind. With theses simple, quick and inexpensive steps, any small business can protect themselves, their workers and the public from a bad hire. Here are the steps:

  • 1.  Have each job applicant sign a consent form for a background check, including a check for criminal records. By announcing that your firm checks backgrounds, it will discourage applicants with something to hide, and encourage applicants to be truthful and honest about any mistakes they may have made in the past. For maximum protection, the release should extend to future background checks for retention, promotion or reassignment unless revoked in writing. If the actual job starts before a background check can be done, make sure to tell the applicant that the position is conditioned upon the employer receiving a background report that the employer finds satisfactory. 
  • 2. Ask an applicant both in the interview and on the  application if they have any criminal convictions or pending cases. During an interview, always ask, “If we were to check with the courts or police department, would we find an criminal convictions or pending cases.” Since the applicant realizes they have signed consent for a background search, there is a motivation to be honest. Be sure to not limit the question to only felonies. Misdemeanors can be very serious although some states limit inquiries about certain misdemeanors. But, do not ask about arrests not resulting in a conviction. It is a best practice to make every job applicant fill out an application.  That protects the employer in many ways.  For example, it makes it easier to compare applicants and to verify information. 
  • 3.  Verify the applicant’s employment for the past seven years and ask them what they thing past employers will say about them.  This is crucial. An employer must call past employers to confirm dates of employment. An employer needs to look into any unexplained gaps in employment where the applicant cannot account for their whereabouts. Many employers make the mistake of not bothering to call previous employers because they have learned from experience that previous employers often will not comment on the specifics of a previous employee’s job performance. However, not calling previous employers is one of the biggest and costliest mistakes an employer can make. Even if the past employers do not comment on job performance, it is critically important to at least verify employment dates and job title. Just knowing that the person has a solid job history is vital information. 
  • 4.  Do a background check:  It is now easier then ever for an employer of any size to perform a background check.  For example, Employment Screening Resources offers ESR Direct, a special service designed for small and medium employers to do background cheeks quickly and easily.  Small and medium businesses can have all of the tools and resources available to Fortune 500 firms.  It is an easy to use and intuitive online system to conduct essential background checks such as criminal records, driving records, sex offender information and past employment, credential or education checks. The system is as easy as ordering a book online.  At checkout, employers view the final amount and simply use a credit card — no surprise fees.  ESR provides the necessary forms for the applicant to sign.  The system is as easy as ordering a book online.  At checkout, view the final amount and simply use a credit card –no surprise fees or costs and the employer controls exactly the services they need.  Most importantly, small and medium business owners have direct access to background checking experts to help them set-up their program. Employees can sign up using a very simple online process.  A small and medium business can be ready to go in 24 hours or less.  See:  http://www.esrcheck.com/smallbizdivision.php

Employment Screening Resources Announces Partnership

Employment Screening Resources , a leading national employment screening background checking firm and Mindset Dynamics, specialists in coaching, training and assessments, announced they have partnered for the purpose of providing additional industry leading solutions for their clients.

Mindset Dynamics provides consulting, training and coaching to leading firms nationwide. They assist organizations of all sizes in following their business plan and empowering their employees that implement that plan with predictable behavior. The firm also offers an industry leading assessment profile tool utilized by numerous colleges, professional sports teams, Fortune 1000 companies, Olympic teams and well known authors and consultants.

Employment Screening Resources is the firm that literally wrote the book on background checks, “The Safe Hiring Manual,” and provides pre-employment screening services and drug testing internationally. The firm specializes in legal compliance expertise and industry leading technology, service, accuracy and turnaround.

“We are very pleased to have the opportunity to partner with this outstanding organization and to be able to offer additional value to both of our clients,” commented Lester Rosen, President of Employment Screening Resources, background screening expert and author of the “Safe Hiring Manuel,” the first comprehensive book on background checks. “Background screening is a critical part of the process of identifying the best employees and is a perfect compliment to the state-of-the-art services offered by Mindset Dynamics.”

Mindset Dynamics (http://mindsetdynamics.com) is a training, coaching and assessment company that utilizes leading solutions in multiple industries to lead businesses and individuals beyond their own success to a place of significance in today’s high-speed world of dynamic challenges. Whether a large corporation, business executive, professional athlete, professional sports club, racing team, auto dealership, real estate company or a franchise owner or seller, Mindset Dynamics can help. Contact Mary Ligon for more information at: Maryligon@ymail.com or by phone at 805-766-8823.

Employment Screening Resources (http://www.esrcheck.com) is a safe hiring partner that provides REAL background checks with no short cuts. ESR specializes in legal compliance and provides industry leading technology, service, accuracy and turnaround. The book, “The Safe Hiring Manual,” is available at http://www.backgroundchecktraining.com/Safe-Hiring-Audit.asp Contact: Jared Callahan for additional information 415-898-9944 or at jcallahan@ESRcheck.com

Employment at Will and Probationary Periods

A critical issue for employers is the nature of the employee-employer relationship. Employers typically hire on an “at will” basis, meaning there is no employment contract and either side can terminate the relationship. Of course, nothing is that simple. Employers are normally advised to be very clear in all stages of the recruiting, interviewing, and hiring procedures that no promises or contracts are made, either expressed or implied, that modify the at-will arrangement. Again, nothing is that smooth. An applicant may argue that, by certain employer’s actions or deeds, there is an implied promise of future employment that can only be terminated “for cause” as opposed to “at will.” Examples of instances where an employee may argue they are no longer “at will” are listed below.

  • Language in an interview that says “if a person does well, the company will take care of them,” or other similar promise of special treatment on the part of the employer.
  • Language in the employee manual that creates a “probationary period.” The implication is that if a person passes the probationary period, they have vested or obtained a more secure status and there must be “good cause” to terminate rather than a right to terminate “at will.”
  • Employee manual language that sets out a series of progressive disciplinary steps where an employee has a chance to improve performance. The implication is if they meet the standards, then the person is no longer “at will.” Employers could add language that restates that nothing in the progressive discipline system modifies the at-will nature of employment, but it still can create issues.
  • A listing of actions or omissions that are grounds for discipline or termination. The argument is if one of these enumerated acts or omissions is not committed, then the employer needs cause to terminate.
  • When an employee has been with the employer for a period of time and has received promotions, regular pay increases and good performance reviews, the employee can argue he or she is no longer at will.
  • Along with appropriate statements in the application, the employee manual is also a critical tool to reinforce the “at will” nature of employment.

    It is also necessary to insure that everyone with hiring responsibilities is trained not to make statements that imply a commitment beyond “at will.” There are also other exceptions to the “at will” status, such as civil service employment, collective bargaining agreements, or public policy exceptions to “at will” status.

    From the perspective of a Safe Hiring Program, maintaining the “at will” relationship can be vital to an employer in the event issues arise related to workplace violence or misconduct, or it is later discovered the employee made material misstatements or omissions during the hiring process. Even though an employer may have grounds to terminate based upon the misconduct or misrepresentation, the “at will” status will assist the employer’s position.

    Excerpt from The Safe Hiring Manual, chapter 18 on “Important ‘After Hire’ Issues.” See Safe Hiring Manual  See: www.ESRcheck.com