Tag Archives: Negligent hiring

ESR Background Screening Trend 7 for 2011: More Workplace Violence Prevention Education Helps Protect Employers and Employees

By Lester Rosen, Employment Screening Resources (ESR) President & Thomas Ahearn, ESR News Editor

Employment Screening Resources (ESR) Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011

Trend No. 7:  More Workplace Violence Prevention Education Helps Protect Employers and Employees

A background screening trend that gained much attention in 2010 that will continue to do so in 2011 will be increased workplace violence prevention education to help protect both employers and employees.

While the term “workplace violence” is appropriate for a quick definition or diagnosis of a problem, fully defining all aspects of “workplace violence” can be nebulous at best. Many employers loosely define workplace violence as:

Assaults, other violent acts, or threats which occur in or are related to the workplace and entail a substantial risk of physical or emotional harm to individuals, or damage to company resources or capabilities.

The Occupational Health and Safety Administration (OHSA) defines “workplace violence” as “violence or the threat of violence against workers” that involves any physical assault, threatening behavior, or verbal abuse occurring in, or related to, the workplace, and includes behaviors ranging in aggressiveness from verbal harassment to murder. According to the U.S. Bureau of Labor Statistics (BLS), there were 521 workplace killings in the United States in 2009, 420 of them committed by gunfire.

Workplace violence incidents seemed to make the news more regularly in this past year, with each tragic case serving to further educate employers, and the public, about workplace violence:

  • January 2010: A male employee at a manufacturing company in Missouri involved in a lawsuit filed against the company allegedly killed three people and then shot himself.
  • February 2010: A female professor was accused of killing three colleagues and wounding three others during a faculty meeting after being denied tenure at a university in Alabama. In an interview on ABC’s Good Morning America, two family members of one victim said they hoped the shooting would lead to more thorough background checks for the school’s faculty after learning about the accused killer’s allegedly violent past.
  • March 2010: A female supermarket worker in Florida fired for threatening to kill a coworker returned to work and made good on her threat.
  • August 2010: In the wake of the tragic shooting spree on November 5, 2009 in which an Army psychiatrist allegedly opened fire at Fort Hood, Texas and took the lives of 13 military personnel and wounded 32 others, the Department of Defense called for more education about workplace violence as part of its final review of the recommendations from the independent report ‘Protecting the Force: Lessons Learned from Fort Hood.’ Specifically, “Recommendation 2.6 a, b: Update Policies to Address Workplace Violence” states the Independent Review found “guidance concerning workplace violence” was insufficient and that these programs “may serve as useful resources for developing more comprehensive workplace violence prevention.”
  • August 2010: A truck driver in Connecticut who purportedly stole from his company and resigned reportedly killed eight people and then shot himself with a handgun.
  • September 2010: After being suspended from her job, a woman allegedly killed coworkers at a baking plant in Philadelphia.
  • September 2010: A survey by Emergency Nurses Association (ENA) revealed more than half of the emergency nurses surveyed – a mean of 54.8 percent – reported experiencing incidents of workplace violence in the past week. In addition, almost three out of four emergency nurses – 74.4 percent – who were victims of workplace violence reported that the hospital gave them no response regarding that workplace violence. As a result of the survey, ENA urged OHSA to make its guidelines for preventing workplace violence into mandatory standards that to which all hospital and health care centers must adhere.
  • September 2010: Part of the emerging trend of workplace violence is that women seem to be increasingly becoming involved in workplace violence incidents. Although women commit fewer than 5 percent of homicides and assaults in the workplace, several high-profile cases of women killing in the workplace occurred in the past year, and these cases could indicate a possible trend emerging of women committing more acts of workplace violence.

These recent incidents of workplace violence remind employers that they should have education and policies on how to help prevent workplace violence, including training on how to recognize, and deal with, the warning signs of workplace violence. 

While the definition of “workplace violence” covers a fair degree of actions, a better interpretation should be used in order to create an effective, defensible policy for employers. A better definition of workplace violence should account for the type of offense, circumstance — where and when an incident occurs, and whether it is considered to be “on-the-job” — and party or parties involved. Workplace violence can take place anywhere employees are required to carry out a business-related function.

While many acts of workplace violence are caused by external parties, such as robbery in the workplace by a stranger, recent concerns over workplace violence center on workplace violence carried out by existing employees. These internal incidents of workplace violence leave employers largely liable for any problems that occur in the workplace under the “Negligent Hiring Doctrine” dictating that employers can be held liable for damages if they knowingly employ persons known to pose a potential threat to co-workers or the public.

That said, the question arises — how can an employer identify a potentially problematic employee? The problem is that there is no magic formula that tells an employer in advance who will and will not be violent. Predicting future violence is a matter of considerable controversy. However, experts have found some factors that are present in many cases of workplace violence. One important factor is a history of past violence.  For that reason, pre-employment background checks are widely regarded as an effective screening procedure because the process serves three major functions:

  • First, screening job applicants can bring to light problems in a potential hire’s past such as a history of violence, harassment, or extremely inappropriate behavior.
  • Second, by making it standard policy to screen all job applicants on their way into the company, employers demonstrate due diligence, showing that all reasonable efforts have been made in determining whether or not the applicant poses a threat to the company or to the public.
  • Third, pro-actively communicated background screening practices cause applicants to opt-out by discouraging prospective jobseekers with criminal or problematic backgrounds from applying.

However, there is more to preventing workplace problems than background screening at the door. Lives of employees can change. A person who checked out in an initial background screening may over time develop the traits or behaviors indicative of a potentially violent employee. It is up to the employer to maintain a constant eye on conditions and events in the workplace — to stay aware of employee attitudes and concerns in order to ensure the safety and security of everyone involved. Some workplace violence is related to domestic violence that spills over in the workplace. Also, workplace violence can be threats that create a hostile workplace. Employers need to be prepared to assemble a team to deal with workplace violence incidents.

One way employers can deal with workplace violence is to use due diligence in hiring as an important tool to avoid “bad” – and potentially violent – hires. Pre-employment background screening plays a critical role of in the hiring process.  Setting up a pre-employment background screening program is quick, easy, and the cost is minimal compared to just one workplace violence incident.  An employer can provide a great deal of protection from workplace violence just by a well designed job application, interview, criminal background check, and past employment and education verification process. The bottom line is that employees also want protection from workplace violence and to work in a workplace with safe and qualified co-workers.

To read more articles about workplace violence on ESR News, visit http://www.esrcheck.com/wordpress/tag/workplace-violence/.  For more information about background screening to help prevent workplace violence, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Employment Screening Resources (ESR) is releasing the ESR Fourth Annual ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011 throughout December. This is the Seventh of the Top Ten Trends ESR will be tracking in 2011. To see an updated list of ESR’s ‘Top Ten Trends in Pre-Employment Background Screening’ for 2011, visit: http://www.esrcheck.com/Top-Ten-Trends-In-Background-Screening-2011.php.  

Founded in 1996 in the San Francisco Bay area, Employment Screening Resources (ESR) is the company that wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen. Employment Screening Resources is accredited by The National Association of Professional Background Screeners (NAPBS®) Background Screening Credentialing Council (BSCC) for proving compliance with the Background Screening Agency Accreditation Program (BSAAP). ESR was the third U.S. background check firm to be Safe Harbor’ Certified for data privacy protection. To learn more, visit http://www.ESRcheck.com or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or jcallahan@ESRcheck.com.

FedEx Named In Lawsuit That Includes Claim of Negligent Hiring and Retention of Truck Driver

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

According to a report from KECI NBC 13 in Missoula, Montana, the family of a volunteer firefighter killed in a 2008 crash has filed a lawsuit claiming that FedEx, the world’s largest express transportation company, and the owner of the semi truck that killed the victim were negligent in hiring the driver of the semi truck and should have known that the driver was “incompetent and unfit to perform the job that he was hired to perform based on his horrendous driving record.”

The volunteer firefighter had stopped to help another motorist and was sitting in his truck on the shoulder of an Interstate highway with his emergency lights on to create a safety zone for a one-vehicle rollover when the driver of the semi truck – who was later accused of driving too fast for conditions – slammed into the firefighter’s truck, KECI reports. The driver of the semi is facing a negligent homicide charge and pleaded not guilty. The matter is still pending in court.

The lawsuit filed by the family of the deceased volunteer firefighter includes a claim of “Negligent Hiring and Retention” against both FedEx and the owner of the semi truck claiming that the Defendants:

  • Knew, or in the exercise of reasonable care should have known, that driver of the semi truck was incompetent and unfit to perform the job that he was hired to perform based on his horrendous driving record.
  • Had a duty of reasonable care owed to Plaintiffs to hire and retain competent, qualified, and safe employees.
  • Breached their duty of reasonable care by hiring and retaining the driver who was incompetent, unfit, and dangerous.
  • Failed to exercise reasonable care, which was the proximate cause of injuries and death and damages suffered by Plaintiff.

To read the full text of the lawsuit, click here. The matter is still pending in court.

Every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring, according to ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ a comprehensive guide produced by background check firm Employment Screening Resources (ESR). 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.

Understanding how due diligence is associated with the liability for negligent hiring is critical for any employer. If a bad hire does something to force an employer to defend in court, then an employer must show how it took appropriate measures of due diligence. Employers that do not perform due diligence are sitting ducks for litigation, including attorneys’ fees and big damage awards.

Employers that implement and follow a Safe Hiring Program (SHP) show due diligence measures that are a powerful legal protection. While the cost of exercising due diligence through a SHP is usually very modest, employers need to measure the risk of hiring blind with the risk of litigation and attorney fees stemming from a single bad hiring decision that may cause injuries and death.

For more information on background checks and negligent hiring, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:
http://www.nbcmontana.com/news/25122686/detail.html
http://www.nbcmontana.com/download/2010/0922/25122750.pdf

Family of Michael Jackson Files Suit Claiming Death of Singer Caused by Negligent Hiring and Retention of Doctor

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

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:

  • 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.
  • 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.

For more information about due diligence and negligent hiring, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.

Sources:
http://thresq.hollywoodreporter.com/2010/09/michael-jackson-lawsuit-aeg.html
http://reporter.blogs.com/files/jackson-2.pdf

Suspended Employee Suspected of Killing Two Co-Workers in Workplace Violence Incident

By Thomas Ahearn, ESR News Blog

In yet another tragic case that adds to the recent rise in workplace violence incidents, a recently suspended employee who had worked at a Kraft Foods plant in Philadelphia, PA for the past 15 years is suspected of killing two co-workers while wounding a third.

According to a report in The Philadelphia Inquirer, the 43-year-old woman and suspected killer allegedly returned to the plant armed with a .357 Magnum only minutes after being suspended and escorted off premises. She returned minutes later with a gun, entered the building, and went to the third-floor mixing room where she worked, and opened fire on three co-workers.

The shooter was taken into custody after a standoff by SWAT team members. The event is eerily similar to other recent workplace violence incidents occurring in the past year:

  • In August 2010, a truck driver in Connecticut who purportedly stole from his company and resigned reportedly killed eight people and then shot himself with a handgun.
  • In February 2010, a professor supposedly upset about being denied tenure at a university in Alabama allegedly fatally shot three professors during a faculty meeting.
  • In January 2010, an employee at a manufacturing company in Missouri involved in a lawsuit filed against the company allegedly killed three people and then shot himself.

In addition, in the wake of the tragic shooting spree on November 5, 2009 in which an Army psychiatrist allegedly opened fire at Fort Hood, Texas and took the lives of 13 military personnel and wounded 32 others, the Department of Defense called for more education about workplace violence as part of its final review of the recommendations from the independent report “Protecting the Force: Lessons Learned from Fort Hood.”

“Workplace violence” is loosely defined as threats, assaults, and violent acts – including murder – which occur in, or are related to, the workplace. All employers should consider having policies, practices, and procedures to address the subject of workplace violence.

For more information about workplace violence, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:
http://www.philly.com/inquirer/front_page/20100910_Shooter_kills_2_Kraft_workers_at_Northeast_Philadelphia_plant.html
http://www.cnn.com/2010/CRIME/08/03/connecticut.business.shootings/index.html?iref=allsearch
http://www.cnn.com/2010/CRIME/01/08/factory.shootings/index.html?iref=allsearch
http://abcnews.go.com/GMA/alabama-university-shooting-suspect-amy-bishop-violent-past/story?id=9839348
http://www.defense.gov/news/d20100820FortHoodFollowon.pdf

Kentucky Case Uncovers Holes in Background Checks for Nursing Home Employees

by Thomas Ahearn, ESR News Staff Writer

A case against a Kentucky nursing home may reveal holes in laws meant to protect nursing home residents since the state only requires criminal background checks for employees caring directly for nursing home residents but not background checks for nursing home support staff like maintenance workers.

According to a story by the Lexington (KY) Herald-Leader posted on Kentucky.com, a lawsuit filed against a nursing home in the state indicates that the nursing home hired a maintenance worker without a criminal background check after he had been arrested for sexual solicitation of a minor and retained his services even after he was placed on Kentucky’s sex offender registry.

The Herald-Leader reported that a former nurse’s aide at the nursing home said in a lawsuit filed that the maintenance worker in question — who underwent a credit check but not a criminal background check — sexually harassed her and stalked her before he was suspended by the nursing home. The maintenance worker’s status as a registered sex offender also put nursing home residents at risk, according to the lawsuit.

While there are no state law specifically calls for criminal background checks for all nursing home employees, there are state and federal regulations that nursing home facilities shall not employ individuals who have been convicted of abusing, neglecting, or mistreating individuals, according to the Herald-Leader.

In addition, the Herald-Leader reports that the lawsuit alleges that nursing home officials could easily have found out about the maintenance worker’s past before they hired him, since the Kentucky State Police had announced that the man had been arrested for unlawful use of electronic means to induce a minor in January 2008 before the facility hired him in July 2008.

The founder of an advocacy group called Kentuckians for Nursing Home Reform is quoted in the story as saying he thinks all nursing home employees should have criminal background checks.

Employment Screening Resources (ESR), a leading provider of background checks, believes due diligence for an effective Safe Hiring Program (SHP) requires that all employees at a business who may have contact with co-workers and the public, from Management to maintenance, should undergo criminal background checks.

Employment Screening Resources ESR Home Health Care Check provides background screening services specializing in home health care workers in private homes or elder care facitlites. For more information, visit http://www.esrcheck.com/services/homehealthcare.php.

For more information about background checks in general, including background checks for nursing home employees, visit ESR at http://www.esrcheck.com.

Source:

http://www.kentucky.com/2010/07/16/1352563/not-all-nursing-home-workers-get.html

The Dangers of Do-It-Yourself Background Checks

By Lester Rosen, President of ESR

(Originally Posted on Toolbox for HR)

From the mailbox: Why shouldn’t employers simply do their own background checks in-house? They can hire people from the screening industry and can certainly figure it out.

Answer: First, the fact that a firm may be able to set up an internal screening program does not mean it makes sense. All sorts of professional services could be done in-house. Successful firms typically spend time and energy doing what they are good at (their core function), and they outsource functions that although critical, do not need to take up in-house resources. Of course, if a firm is large enough it may make sense. Of if the firm has a special place in the market where there is a need to be able to tell people they control the process, then that may be a good reason to perform services in house. Most successful firm outsource those HR endeavors that are unusually complicated or regulated, which would include many human resource services such as benefits, retirement planning and screening.

Secondly, it can be a trap to think that the federal Fair Credit Reporting Act (FCRA), the law that controls third party background checks has no application to in-house processes. An employer that performs these activates in-house can easily hit an FCRA “tripwire” thus invoking the FCRA. There are numerous examples. Hiring an out of state agency to pull a court record for example could, per an FTC staff letter, make what appears to be a non-FCRA investigation into an FCRA regulated activity. Accessing non-public databases can make it an FCRA event. California has applied some FCRA type rules on a limited basis to employers that do public record checks in-house. So unless every single thing an in-house department does is done by your own W-2 employees and you only access public records, you may end up tripping the FCRA. Our advice is that even if done in-house, act as though the FCRA applies.

One argument made in favor of in-house processes is that a firm can conduct better reference checks because it knows what it is looking for. Verifications are an interesting issue. There are two types of verifications. Managers may call to determine if someone should be hired. Screening firms are typically called upon AFTER a tentative hiring decision has been made for the purpose of a methodical review of the work history to confirm employment. Hiring managers cannot always be counted on to document the entire work history. Either Human Resources, an internal department or an outside vendor needs to ensure that all employers have been contacted.

Finally, there are a number of specialized skills and resources that are needed, such as figuring out education fraud, or if a criminal record can be used. Unless a firm has access to experts on the laws of all 50 states, and an understanding of EEOC rules, etc, doing it in-house can be very risky. Accessing records from thousands of different courts can be very tricky. A great deal of knowledge is required,

The bottom-line is that if a business does it in-house and they miss a record that a competent third party firm would have found and someone is harmed, it would not be much of a jury defense that the business was trying to save a few bucks by doing something in-house that requires such specialized skills and knowledge.

There is also the cultural issue that some firms find it advantageous to have a third party do the background checks, so the employment relationship does not start with what may seem an invasion of privacy.

So, the bottom-line is an organization needs to figure out if at the end of the day, the time and effort it takes to perform service in-house is worth it, if it can be outsourced. There are certainly organizations that for cost savings have essentially set up their own internal background units successfully, but they essentially have became an in-house background firm that needs to know how to do everything a third party firm can do. However, for the right firm, an in-house process can make sense as long as they know how to do everything a third party firm can do and if it makes economic sense.

For more information about background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://hr.toolbox.com/blogs/background-checks/the-dangers-of-doityourself-background-checks-39727

Employment Screening Expert Lester Rosen to Present Session on Background Checks at SHRM Annual Conference

By ESR News Staff

Employment Screening Expert Lester Rosen, President of Employment Screening Resources (ESR), a leading employment screening firm headquartered in the San Francisco area, will present a session on background checks at the SHRM Annual Conference and Exhibition on June 30, 2010, in San Diego, California.

The annual event — the world’s largest human resources conference — is sponsored by the world’s largest human resources association, the Society for Human Resources Management (SHRM), and features top HR and business experts sharing their perspectives, strategies, tools, and tips for growing a company’s talent.

The session to be presented by Rosen — Negligent Hiring and Background Checks: Best Practices and Legal Compliance — will help human resources professionals avoid employee problems by identifying potentially problematic applicants through legally complaint due diligence tools.  The session addresses new trends and legal challenges facing employers, and will also cover issues such as the use of social networking sites, international background checks, and concerns over the use of credit reports and criminal records.

“I am very pleased to have the opportunity to review cutting-edge applicant selection topics that can help employers select the best candidates,” commented Rosen. “Exercising due diligence and staying out of court is mission critical for businesses of all sizes, and this presentation is aimed at identifying for  employers and recruiters the latest trends, tools, and legal developments.”

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

In addition, Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS), the professional trade organization for the employment screening industry, and served as its first co-chairman in 2004.

For more information about the SHRM Annual Conference and Exhibition, visit http://annual.shrm.org/. For more information about background checks and employment screening, visit Employment Screening Resources (ESR) at www.ESRcheck.com.

Sources:

http://sanfrancisco.dbusinessnews.com/shownews.php?newsid=212110&type_news=latest

http://annual.shrm.org/

CAUSE Shows Background Checks Needed To Uncover Unsafe Service Employees Working In Homes

When a hired worker enters your home to perform a service that you requested, do you know to whom you are opening your door?

So asks an article on HuffingtonPost.com — ‘Could You or a Loved One End Up Like Elizabeth Smart?’ — that shows why background checks are needed to uncover unsafe employees working in and around homes of other people, and how background checks can help people avoid tragedies like the one experienced by Lucia Bone, the founder of ‘Sue Weaver CAUSE’ Consumer Awareness of Unsafe Service Employment.’

The article title references the case of Elizabeth Smart, whose father hired a contract day-worker who then later returned to the house to kidnap Elizabeth. The girl survived the ordeal, but Sue Weaver, Lucia Bone’s sister, was not so fortunate even though the worker who entered her home was hired by a large company.

In 2001, according to the article, Weaver was raped and beaten to death in her Florida home. Six months before her death, Weaver had contracted with a major department store to clean the air ducts in her home. Both workers sent to her house had criminal records. One was a twice-convicted sex offender on parole who — like the worker in the Smart case — returned to a home where he had once worked to commit a crime.

Sadly, the article reports Weaver’s murder is not an isolated case, since many consumers are robbed, assaulted, and murdered each year by workers with jobs that allow them access into homes. Because of this, Bone started Sue Weaver CAUSE to both honor her sister and to fight for standardized background checks of all in-home service employees. Through consumer awareness and legislation, Bone wants to ensure that big, reputable retail companies like Sears, Best Buy, Home Depot, Lowes, and others perform thorough criminal background checks on the contractors and sub-contractors they send into homes.

Since there are currently no federal or state laws requiring companies to do criminal background checks on contractors or sub-contract workers sent into homes, Sue Weaver CAUSE is demanding legislation for CAUSE Certification compliance. When interviewed for the article, Bone says the CAUSE Certification would require annual background checks following CAUSE minimum screening standards on all employees, contractors, and subcontractors. Bone adds that these standards were determined from survey results from questions asking background screening professionals what minimum screening should be conducted on workers going into homes of elderly mothers, pregnant wives, and people with special needs.

According to Bone, the minimum requirements for CAUSE Certification are:

  • Social Security Number (SSN) Address Trace;
  • County-Level Criminal Check (Search records for past seven years in counties where applicant lived, worked, or attended school);
  • Multi-jurisdictional/”National” Criminal Database, and;
  • National/State Sex Offender Registry.

In addition, Bone says consumers “never think about (criminal background checks for in-home service workers)” and automatically assume the company they hire would not send criminals into their homes. She advises consumers to be proactive and not assume companies properly screen workers sent to homes. “Bonded and insured is not a background check.”

The Sue Weaver CAUSE website is located at: http://www.sueweavercause.org/.

For more information on background checks, please visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Source: http://www.huffingtonpost.com/janet-kinosian/could-you-or-a-loved-one_b_559526.html

New CO Law Gives Ex-Convicts More of a Chance to Find Jobs and Employers Less of a Chance of Liability from Negligent Hiring

By Thomas Ahearn, ESR Staff Writer

A recent article in the Denver Business Journal reveals details about a little-known bill that may have a big impact on the business community in Colorado with regards to employer liability from negligent hiring.

House Bill 10-1023 ‘Employer Liability Negligent Hiring’, recently signed into law by Colorado Governor Bill Ritter, prohibits the criminal history of an employee from being part of a lawsuit against the employee’s business unless that criminal history has direct applicability to the legal action.

According to the article, the bill was sponsored by Rep. Mark Waller (R-Colorado Springs) after he learned that businesses often do not hire applicants with criminal backgrounds no matter how long the ex-convicts have been clean or how unrelated their criminal histories are to the jobs for which they applied.

Since employers fear being sued for negligent hiring if workers they hire with criminal backgrounds do anything wrong, Waller wanted to help protect businesses from negligent hiring lawsuits while also giving ex-convicts a chance to find work. The resulting bill prohibits information concerning the criminal history of an employee from being introduced in civil actions if:

  • The employee’s record is sealed;
  • The employee received a pardon;
  • The criminal history isn’t related to the facts of the case, or;
  • The employee’s record is from an arrest or charge that did not result in a criminal conviction.

However, businesses still would be held liable for negligent hiring if they hired employees with criminal backgrounds unsuitable for their jobs, the example given the article being a person convicted of breaking and entering hired to install alarms in homes who then subsequently robs one or more of those homes. As usual, employers must use common sense in these matters.

With new laws like the one recently passed in Colorado, employers will want as much information as possible upon which to base their hiring decisions. Criminal background checks are a safe and effective way to reveal the criminal pasts of applicants and to help employers make future choices about which workers they want to hire.

For more information on criminal background checks, other methods of a safe hiring program, and the latest legal updates regarding negligent hiring, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.bizjournals.com/denver/blog/capitol_business/2010/03/new_law_gives_ex-cons_a_better_chance_at_a_job.html

http://www.leg.state.co.us/CLICS/CLICS2010A/csl.nsf/fsbillcont3/33D8A2927B432FBA872576A80026AFC2?Open&file=1023_01.pdf

Defenses That Do and Do Not Work in Negligent Hiring Cases

If an employer is sued for negligent hiring on the basis that they hired someone that they either knew or in the exercise of reasonable care should have know was dangerous, unqualified, unfit or dishonest, and it was reasonably foreseeable that some of harm could occur, an employer can be sued for negligent hiring.  That is the opposite of due diligence.  If the subject of a legal action, employers do have some potential defenses in a court case, but they are far from a sure thing.

The best defense is that the employer did in fact exercise due diligence and reasonable care, but despite those best efforts, a bad hire fell through the cracks. An employer would have to show that they took a number of steps designed to avoid bad hires. An employer can review the adequacy of their hiring efforts by taking the safe hiring audit offered by ESR. See: http://www.backgroundchecktraining.com/Safe-Hiring-Audit.asp

Another defense that had been successful is that the crime or injury was too remote or unconnected from the employer’s negligence, or was not foreseeable. An example is the California case ESR recently reviewed where a plumber with a criminal record was hired, meet a woman on the job that he started dating, was terminated by the employer and then murdered the girlfriend two years later. The victim’s family’s argued that but for the negligent hiring, the two would not have met in the first place and the murder would not have occurred. The court found that the murder two years later and long after termination was not sufficiently connected to the hiring to hold employer legally responsible. See: http://www.esrcheck.com/newsletter/archives/September_2009.php#T1

Another defense that a background checks would have not have revealed anything anyway so that the employer’s failure to conduct an adequate pre-screening was not the cause of the injury.  As the old adage goes, “every dog has its first bite.”  If there was nothing for a background check to locate that was a potential a “Red Flag,” that is also a defense.

Some defenses that do not work? Employers have not been very successful in defending lawsuits on the basis that due diligence and background checks cost too much, especially considering how inexpensive it is to screen. Another argument that may not go far with a jury is that the employer did what every other employer did in their industry. The fact that all employers in an industry engage in the same practice does not mean that the employer has meet the legal duty of due diligence, since a “standard practice” is not the same as a “standard of care.” The least successful defense is the argument that the employer is also the victim as well, or that they were victimized by an applicant lying.

The bottom-line: Exercising due diligence in hiring and conducting background checks is a small price to pay to avoid the “Parade of Horribles” that can befall an employer that makes bad hiring decisions.