Tag Archives: lawsuits

Background Check Lawsuit Claims FCRA Violations

Written By Thomas Ahearn

homepage-legalIn a class action suit alleging Fair Credit Reporting Act (FCRA) violations, a federal judge has ruled that Canon Business Solutions faces additional discovery into claims the company relied on criminal background checks without letting employees or job applicants dispute the findings, according a Courthouse News Service report available at http://www.courthousenews.com/2014/03/03/65785.htm. Continue reading

EEOC Scrutinizing Hiring Practices that Unfairly Screen out Job Applicants with Criminal Records

The U.S. Equal Employment Opportunity Commission (EEOC) is scrutinizing hiring practices and believes policies that screen out job applicants with criminal records could disadvantage minorities and lead to lawsuits, according to the article ‘Ex-Convict Hire Hurdle Draws U.S. Suits Against Employers.’ The EEOC has been enforcing employment discrimination laws with lawsuits and Attorney Lester Rosen, founder and CEO of background check firm Employment Screening Resources (ESR), believes this is “going to be an issue that employers need to wrap their heads around” this year. The article is available on Bloomberg.com at http://www.bloomberg.com/news/2014-01-31/ex-convict-hire-hurdle-draws-u-s-suits-against-employers.html. Continue reading

Class Action Lawsuits for Failing to Perform Background Checks Properly Becoming Even More Prevalent

Given the need for employers to exercise due diligence in hiring and at the same time comply with the complex legal environment regulating hiring, employers can expect to see an increase in legal actions in 2014 – including class action lawsuits – for failing to perform proper background checks or failing to do them right.  This is Trend Number Four of the 7th Annual Employment Screening Resources® (ESR) ‘Top Ten Background Check Trends’ for 2014. For more information about the trends, please visit http://www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends. Continue reading

Attorneys General from Nine States Send Letter to EEOC Expressing Concern about Background Check Ban

The Attorneys General from nine states – Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Utah, and West Virginia – have sent a letter to the U.S. Equal Employment Opportunity Commission (EEOC) expressing concern about two recent lawsuits filed by the EEOC against companies that use criminal background checks when hiring new employees. The signed letter dated July 24, 2013 is available at http://www.esrcheck.com/file/Atty-General-Criticism-of-EEOC_2013-7-24.pdf. Continue reading

Human Resources Expert Testifies Background Check Should Have Been Conducted on Doctor for Michael Jackson

A Human Resources expert testifying in the wrongful death civil lawsuit against a concert promoter told jurors that the promoter should have performed a background check on the doctor for deceased pop singer Michael Jackson and “did indeed fail to follow adequate hiring processes,” according to a report by KNX 1070 News Radio in Los Angeles, California. The full story is available on the CBSLA.com website at http://losangeles.cbslocal.com/2013/07/01/hr-expert-aeg-should-have-conducted-10-background-check-on-conrad-murray/. Continue reading

Workplace Romances Can End Happily in Marriage or Sometimes Unhappily in Lawsuits Against Employers

Just in time for February 14, the annual CareerBuilder Valentine’s Day Survey has revealed that 3 in 10 workers – 30 percent – who have dated a co-worker said their workplace romance led to marriage. However, the fact that nearly a third of all romances that started in the workplace resulted in marriage also means that more than two-thirds of such relationships may have already ended, perhaps even in a potentially messy breakup that could be bad for business. Continue reading

Employment Screening Lawsuits Increase as Attorneys and Consumers Become Familiar with FCRA Laws Regulating Background Checks

Consumers and attorneys are looking more closely at background check reports and laws governing employment screening and filing more lawsuits against employers. On one hand, employers are being sued by victims that alleged the employer failed to perform adequate screening. On the other, employers and background screening firms also face lawsuits from job applicants complaining about the accuracy of background reports, or failure to meet the guidelines of the federal Fair Credit Reporting Act (FCRA). In a number of cases, class action suits are being utilized as the vehicle to bring legal actions against employers. This is Trend Number 7 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit http://www.esrcheck.com/ESR-Top-10-Trends-in-Background-Checks-for-2012.php. Continue reading

Family of Woman Killed by Bus Sues Company for Negligent Hiring of Driver with History of Traffic Violations

The family of a 26-year-old Illinois woman struck and killed by a tour bus as she crossed a street has filed a lawsuit in Cook County court claiming that the owners of the bus were negligent in hiring and retaining a bus driver who was a convicted felon with 20 citations for traffic violations and whose Commercial Drivers License was temporarily suspended in 2008, according to a report on the Chicago Sun-Times media wire. Continue reading

Staffing Vendors, Co-employment, Background Checks, and Lawsuits

By Lester S. Rosen, President of ESR

(First published on RecruitingTrends.com)

As the recession begins to slowly turn around, employers are naturally cautious about increasing the size of the workforce until it becomes clear that hiring additional full-time workers is justified. The solution traditionally has been to hire through staffing agencies so that an employer had flexibility to adjust to the ups and downs of the recovery. 

However, the notion that just because workers are on someone else’s payroll that they are not a businesses’ responsibility or problem is simply not true.

It is clear, in fact, that when a business hires temporary workers, the business assumes much of the same liability as when workers are hired directly. Although staffing agencies still have duties to pay wages and handle such items as reporting to appropriate agencies and workers compensation insurance, there are a host of potential employment law liabilities that are still the responsibility of the employer.

An employer can still be sued for sexual harassment, or for having a hostile workplace, or for discrimination regardless of whether the worker gets paid by the company, or paid through a staffing firm. That is because the temporary worker is still under the control and direction of the workplace. This falls under the legal doctrine of co-employment, where both the staffing vendor and the business have duties and obligations. 

For employers, the scope of their co-employment responsibility can even extend to liability for negligent hiring and negligent retention. The law is absolutely clear that if a temporary employee harms a member of the public or a co-worker, the employer can be just as liable as if the person were on the employer’s payroll.  Many employers have found out the hard way that unscreened or inadequately workers from a Professional Employer Organization (PEO) or staffing vendor can also cause damage. A business can be liable if, in the exercise of reasonable care, the business should have known that a temporary worker was dangerous, unqualified, or otherwise unfit for employment. An employer has an absolute obligation to exercise due diligence not only in whom they hire on payroll, but in whom they allow on premises to perform work.

No employer would dream of walking down the street and handing the keys to the business to a total stranger, yet many employers across America essentially do exactly that every day when engaging the services of vendors and temporary workers.

Part of the problem is that the word “screening” is used differently by staffing vendors and employers.  A staffing vendor will “screen” applicants to determine whether a candidate’s resume is a match for the job description.  For employers concerned with due diligence, and risk-management, “screening” means having a background check performed to determine whether the person is safe and qualified. 

Of course, in the event of a lawsuit where an employer is sued, the employer would likely turn around and blame the staffing vendor or PEO. However, the employer will still need to justify its own due diligence in how it selected and supervised the staffing vendor.

The PEO or staffing firm would likely blame the employer for failure to specify what was required. Although the eventual outcomes will depend upon specific facts, employers and staffing vendors can avoid these difficulties in the first place by clearly addressing who has what duties.

These are some of the issues that should be clarified when an employer and staffing vendor work together: 

  • Which party is going to perform the background check — the staffing vendor or the employer?
  • What is the screening protocol to be used? Ideally, employers should require a staffing vendor to utilize the same criteria used for their own W-2 employees.
  • What Background Screening firm will be used? The employer needs to ensure that the staffing vendor utilizes a background screening agency that is experienced and qualified for the assignment and follows best practices, such as not offshoring data, not using home based operators, and not substituting cheap database checks instead of real criminal searches.
  • Whose responsibility is it to actually review the Background Screening report?  There have been cases where staffing firms have found negative information but no one read the report or acted on it.  The negative information typically comes to light when the employer decides to make the worker permanent, and performs its own background check, only to discover that a crime or resume fraud was missed or not acted upon.
  • In the event derogatorily or negative information is found, how are decisions to be made?  The use of automated pass/fail criteria by the staffing vendor are increasingly becoming a potential Equal Employment Opportunity Commission (EEOC) issue, since it can have the affect of discrimination against protected classes of applicants.  Another solution is to send anything of a negative nature to the business for a final decision on whether they want that person on the premises.  Some staffing vendors, however, take the position that since it is their employee, it is their decision.  The critical point is to work out the protocol in advance.
  • Do the consent and disclosure forms for background checks reflect the roles of the parties?  Under the federal Fair Credit Reporting Act (FCRA), a business can request that the background release extend to the business so it can review the background report. However the background release must also clarify that the staffing vendor is the employer of record.
  • Who is going to pay for the background checks? 
  • Who is going to send out the required adverse action notices or conduct a re-investigation? 

The bottom-line: staffing vendors can avoid a great deal of difficulty if these issues are addressed and documented upfront so that everyone is clear on who has what responsibly when it comes to safe hiring.

For more information on background checks staffing vendors, co-employment, background checks, and lawsuits, please visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Source:

http://www.recruitingtrends.com/staffing-vendors-co-employment-background-checks-and-lawsuits