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November 2004 Vol. 4, No. 11
Employment Screening Resources (ESR) Newsletter and Legal Update
Hot of the Press: A firm in New York City that delivers groceries to peopleâ€™s homes in Manhattan, Brooklyn and Queens, found out the hard way that the use of an inexpensive and instant national criminal database does not provide the protection that some employers believe. According to a news account, FreshDirect hired an employee to deliver groceries who allegedly made obscene phone calls to female customers. The employee had a serious criminal record that did not show up in a database search performed by a large national background firm.
The employer utilized a so-called â€œNational Criminalâ€ search. This is a search of available databases in the majority of states taken from various sources, such as prison records or court indexes available from some courts. Although the report is valuable because it is national in reach, it is not a substitute for a real criminal search of state courts at the courthouse level. The national criminal searches are only intended as an inexpensive and instant â€œpre-screenâ€ tool, or as a secondary search to supplement a courthouse search. Because it is a database, there can be errors caused by incomplete or inaccurate data. As a result, a person with a serious criminal record can be erroneously â€œclearedâ€ and innocent people can be labeled as felons.
The lesson: Be careful using databases! The employer could have ordered a â€œrealâ€ New York search from the screening firm through the state Office of Court Administration (OCA), providing real statewide information for New York based upon the most current court records. Although more expensive than the cheap instant search, the cost is likely a great deal less than the negative publicity and the possibility of litigation.
In addition, Employers need to institute safe hiring procedures utilizing effective application, interviewing and reference checking processes. These procedures cost nothing, but substantially increase the employerâ€™s odds of avoiding a person with an unsuitable criminal record even before the background check.
For more information on national criminal records used as a supplement to courthouse searches, see: National Criminal Database
For more information on safe hiring procures, see: Safe Hiring Program
Another survey, conducted in 2004, demonstrates that employers are increasingly utilizing pre-employment screening a part of their due diligence. According to an online survey by the Society for Human Resource Management (SHRM) in May of 2004, a random sample of e-mail responses showed that 88% of employers found some degree of inconsistencies in resumes. Only 2% never found inconsistencies and just 9% said they do not investigate the backgrounds of applicants.
The findings are in line with a survey reported in the September 2004 edition of the HR Executive, which was reported in the September ESR Newsletter. According to that survey of 322 human resources professionals, there has been a 64% increase or enhancement of background screening requirements over the past three years. Thirty-four percent (34%) reported no change while just 2% indicated they had decreased screening.
The bottom line: The significance for employers is that these surveys are strong evidence of a national standard of care whereby background checks are a standard part of any employment process in order to demonstrate due diligence.
The Fourth Circuit Court of Appeals in October held that a janitorial service that did not check backgrounds could be sued for negligent hiring, where an employee attacked a college student, and a background check may have shown a prior physical assault on a woman. The court rejected the defense that there was no duty to check since the applicant denied a criminal conviction on a previous application and there was nothing to put the employer on actual notice of a prior criminal history.
The janitorial firm was hired by Virginia Tech, on the condition that background checks be performed. The janitorial service failed to conduct a background check, despite having employed the attacker on three different occasions before the attack. A lower court agreed with the janitorial service that the case should be dismissed because the employee had previously indicated on an application they had no criminal record and the janitorial service had no reason to suspect a criminal record.
The Appellate court reversed, and determined there was sufficient basis for the case to proceed to a jury trial. The Appellate Court, citing an earlier court decision, determined an employer can be liable for the acts of an employee on a theory of negligence, when:
â€œan employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.â€
According to the Court, it was a jury issue if a background check may have revealed a criminal complaint filed in a neighboring county by a woman that the employee had previously attacked.
The bottom line: When an employer fails to conduct due diligence on an employee, and someone is harmed in a situation where it was foreseeable a bad hire can cause damage, the employer cannot escape liability because it did not know about the past criminal conduct. The fact that an applicant denies a criminal record or the employer does not know about it is not an excuse. To avoid liability, employers should be proactive in conducting background checks.
See Blair vs. Defender Services, In. 4th Cir., No. 03-1280. October 25, 2004.
See a new article published in the HR Innovator by Assessment Leaders, an ESR partner, called, â€œAt the Feet of the Apprentice.â€ The article about the TV reality show details the value of assessing if a candidate is a good fit for the job. For employers who do not have the luxury of a 15 week reality show before making hiring decisions, the article reviews assessment tools that are available to every employer immediately.
The article is at: http://www.assessmentleaders.com/apprenticereprint.pdf
See Assessment Leaders at http://www.assessmentleaders.com/
ESR is pleased to announce the publication of the first definitive book on pre-employment screening and safe hiring. The book, The Safe Hiring Manual-the Complete Guide to Keeping Criminals, Terrorists and Imposters Out of Your Workplace, is by ESR President Lester S. Rosen. The 512 pages cover only pre-employment background checks and safe hiring. It is available from Amazon.com, Borders, Barnes and Noble and numerous other bookstores.
ESR will be participating in the following seminars across the United States.
April 21 and 22, 2005–Dallas, TX “Criminals, Imposters and Recruiting – The Role of Pre-employment Screening in the Hiring Process.” SRHM 36th Annual Employment Management Association Conference and Exposition (EMA website).
February 23, 2005–San Francisco, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop for HR professionals and employers sponsored by the NCHRA–www.nchra.org)
February 9, 2005–San Jose, CA “Keeping Imposters and Criminals Out of the Workplace–An Introduction to Safe Hiring and Pre-employment Screening in California.” (A three hour workshop sponsored by the NCHRA-www.nchra.org)
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945