Tag Archives: Negligent hiring

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.

Due diligence risk management and Employment Screening

In the April, 2009 ESR Newsletter, ESR reported on a case in Ohio where a negligent hiring lawsuit was filed on behalf of a sleep clinic patient that was sexually molested by a staff member.  http://www.esrcheck.com/newsletter/archives/April_2009.php.  The article reported that a technician was facing gross sexual imposition and sexual imposition charges for allegedly molesting five victims.  The lawsuit “accuses the sleep clinic of negligence for hiring (the worker) and failing to properly supervise him.”  

Another sleep clinic case, this time from California is now in the news.  According to a story in the Monterey County Herald, a sleep technician was accused of sexual misconduct and the case eventually resulted in a no contest plea to a battery charge.  The case even lead to a new law in California that regulated workers in sleep clinics and required them to pass background check.  See:  http://www.montereyherald.com/local/ci_13864096 

These stories demonstrate a fundamental fact of life for employers. In deciding how extensively to perform background screening, employers need to consider the risks involved.  Patients in a medical facility are highly vulnerable and therefore at greater risk. Presumably, patients at a sleep clinic are even more vulnerable since they are there to sleep.

Examples where employers may have an increased duty of care are: 

  • The workers have contact or responsibilities with groups at risk, such as the young, infirmed, or elderly.
  • Jobs such as a security guard, where a person acts under a “color of authority.”  A person who wears a uniform is even a higher risk since a person may assume they have authority and may let their guard down. 
  • Jobs with special responsibilities such as an apartment manager that has the master key to all of the apartments.
  • Jobs where a worker has access to sensitive consumer information, such as credit card numbers or Social Security numbers.
  • Jobs where by statute, there is particular sensitivity.  An example can be safety sensitive positions such as workers at nuclear plants.  Sarbanes-Oxley compliance is another area where that may create a higher duty of care.
  • Jobs where workers enter homes, or where other unique risks exist.  A person in their own home can be extremely vulnerable since they are shielded from the public and cannot obtain help easily.  In fact, an organization called the Sue Weaver Cause advocates greater due diligence where workers enter homes.  According to their website:
    “August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender hired to do service work in her home. Sue had contracted with a major department store to have the air ducts in her home cleaned.  (The department store) did not conduct criminal background checks on those workers they sent into their clients’ homes.”   For more information, see:  http://www.sueweavercause.org/  

To review the risk management considerations for your screening program, contact Jared Callahan at 415-898-0044 or e-mail him at jcallahan@esrcheck.com

California Case Demonstrates Outer Limits to Negligent Hiring Exposure

The case involved a plumber that was hired in 1999, even though the plumbing company knew the person had been convicted of domestic violence and/or arson involving the plumber’s ex-wife. Four years later, in 2003, the plumber performs a service call at the victim’s home. The plumber and the victim started a relationship that eventually turned romantic in nature.  About a month after the service call with the victim, the plumber was terminated for misuse of a company vehicle, drug and alcohol use and an allegation of threatening a co-worker.

By 2005, the victim apparently had enough and ended the relationship and applied for a restraining order against the plumber. The plumber shot and killed her and was convicted of her murder. Continue reading

The Basics of Criminal Records Searches

Searching for criminal records is much more complicated than it appears on the surface.  Contrary to popular belief, there is no central database available to most private employers to instantly find a person’s criminal record at one touch.  The FBI database is only available to employers that are legally authorized to submit fingerprints, the readouts can be complex and there is even the possibility of errors in those records.  With some 3200 counties in the US, screening firms have developed tools and techniques to identify potentially relevant counties to search, and nearly any county in America can be researched on site within 24-36 hours. The best practices for employers are to identify counties associated with the applicant and to search those counties by going to the courthouse. The way relevant counties are identified is first by using a tool called a social security trace that uses millions of records which show what addresses a social security number is related to. In addition, some employers also search counties where a person has worked or gone to school.  Although such searches are very accurate, as with anything depending on human beings, there is still some small margin of error possible. 

Even assuming a record is found, a professional screening firm must determine if there are sufficient identifiers to associate the record to the applicant, and even if the criminal record belongs to the applicant, numerous states have laws that restrict what can be reported. Many states do not allow the use of arrest records, and even if a state allows it, there may be EEOC considerations. Even if a screening firm can report a conviction, the employer needs to consider whether the use of the record is discriminatory.  An employer should not automatically reject an applicant with a criminal record, unless there is a business justification, taking into account such things as the nature and gravity of the act, the nature of the job and the age of the crime. 

Employers should be careful in the use of commercial databases that are advertised to search millions of records with instant results.  Those 30 second searches are NOT a substitute for a real criminal check at a courthouse and probably would not demonstrate due diligence if used all by themselves. These databases are assembled from a hodgepodge of various sources that are willing to make their data public or to sell data, such as incarceration systems, state repositories or individual counties.  These databases do not cover all states and may not be up-to-date, accurate or complete.  Certain states do not provide date of birth, which is another reason a criminal record may not come up in a database. This can all lead to both false negative and false positive results from databases. A false positive means a person is branded a criminal who is not, and a false negative means a person with a criminal record is falsely ‘cleared.’ 

The commercially available instant criminal reports are best used as a research tool only by a professional screening firm to locate other places to search.  Since they cover such a wide area, they can be very valuable in locating records that a county by county search can miss.  However, these instant databases are also a potential source of litigation against employers and screening firms, with applicants filing lawsuits for being unfairly tarnished as criminal, or victims claiming that the employer did not exercise due diligence.  Even if there is a database ‘hit,’ under the federal Fair Credit Reporting Act, the background screening firm must either reconfirm the details at the actual courthouse to ensure accuracy, or send a contemporaneous notice to the applicant at the same time, so they know that they are the subject of negative public records.  California is one state where any database ‘hit’ must be re-confirmed at the courthouse and ESR believes it is a best practice to reconfirm all database hits at he courthouse to guard against unfairly labeling someone as a criminal where their case has been dismissed, or they are the victim of identity theft or just happen to have the same last name as a perosn with a criminal record. 

Some states offer access to the state police or central state court databases.  Again, it takes a background screening expert to understand the value of such information on a state by state basis.  There is also a difference between state court searches and federal courts. 

All of this is just the tip of the iceberg.  For more details, see: http://www.esrcheck.com/services/services_detail.php

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