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May 2006 Vol. 6, No. 5
Employment Screening Resources (ESR) Newsletter and Legal Update
On May 2, 2006, jurors in a South Carolina negligent hiring case found in favor of Wal-Mart where Wal-Mart employed a convicted sexual offender without doing a background check and the offender molested a ten-year-old girl in a Wal-Mart store. Wal-Mart did not dispute the molestation occurred but defended themselves on the basis that at the time it had no duty to do a background check, the employee lied about his criminal record and that Wal-Mart did not do anything negligent.
Wal-Mart faces another negligent hiring trial in South Carolina based upon similar allegations that a 12 year-old-girl was fondled by an employee with two previous convictions for sexual assault at an Orangeburg Wal-Mart store in 2004. Wal-Mart decided in August, 2004 that it would begin conducting background checks on new hires nationwide. According to a news article, Wal-Mart was among the first retailers in the industry to start screening current employees with sex offender registries in every state that allows it.
This case has a number of valuable lessons for employers:
- Each negligent hiring case is decided on its own unique facts. Even though this particular jury found in Wal-Martâ€™s favor, it is important to note that the plaintiff stated sufficient facts for the case to be brought to trial. Once a case goes to trial, it is difficult to predict what a jury will do.
- Wal-Mart still had to endure not only the direct cost of litigation and the possibility of a large verdict, but the national publicity of having hired a convicted child molester who molested a child in a Wal-Mart store.
- The fact that a job applicant lied about their criminal record does not prevent the case from going to the jury. It is the jury who decides in each case if an employer had a duty to go beyond the application and conduct a background check.
- Wal-Mart has revised its hiring practices and now does background checks. Wal-Mart has apparently concluded that the cost of doing background checks is less than the cost of not doing them.
The bottom line: The fact that this particular jury in this particular case found in favor of an employer who hired a child molester without doing a background check does not mean that employers have anything less to worry about. As an economic giant, Wal-Mart was able to withstand a sea of bad publicity, pay the legal fees needed to go through a jury trial and to mount a successful defense. For employers without the economic strength of Wal-Mart, the better path would be to do what Wal-Mart started to do in 2004; exercise due diligence in hiring through background checks.
According to research cited in the May 1, 2006 issue of Time Magazine, there is â€œa lot of evidence that those who cheat on job applications also cheat in school and in life.â€œ That was the opinion of Dr. Richard Griffith, director of the industrial and organizational psychology program at the Florida Institute of Technology.
Dr. Griffith is the author of a book on job applicant faking that is soon to be published. According to the article, he is concerned that if an applicant fakes a degree, how can they be trusted to tell the truth when it comes to financial statements. See Time Magazine article on â€œGetting Wise to Lies,â€ May 1, 2006.
These observations confirm what many employers, security and human resources professionals already know – that if an applicant lies in order to get into a job, there is no way of knowing what lies or acts of dishonesty will occur when they are working for you. This is another reason that employers need to be very careful about who they let into their business in the first place.
A recurring issue for employers is how to determine the adequacy of a background check and the adequacy of the background-screening firm providing the check. According to the same Time Magazine article, there are some 700 firms in the US that offer background-screening services.
The national trade association for the background screening industry, the National Association of Professional Background Screeners (www.NAPBS.com) is currently formulating an accreditation program, so that an employer can determine which firms have gone through a rigorous accreditation process designed to demonstrate that a background screening firm has proficient knowledge in all areas of preparation and dissemination of employment-related consumer reports, including privacy rights protections and legal compliance. It does not appear that the accreditation process will provide accredited firms before 2007.
In the meantime, employers who need to ensure that they are dealing with professional background firms that are proficient and legally compliant will need to do their own due diligence.
To assist employers, Employment Screening Resources (ESR) has prepared a chart with 40 critical questions that an employer should ask any provider of screening services. The chart summarizes a number of best practices that employers need to know about before selecting a screening firm.
For example, employers may wish to avoid working with a screening firm that utilizes the following methods while conducting US-based backgrounds:
- Sends employment and education verifications to home operators, risking both applicant privacy and the quality and integrity of the information provided.
- Sends information offshore for data entry and processing.
- Utilizes databases instead of more accurate onsite courthouse searches for criminal records.
- Reports criminal records based upon a non-existent national criteria instead of understanding the individual rules for each of the 50 states.
The 40 point comparison chart is available at https://www.esrcheck.com/ESRadvantage.php
For more information on how to identify a professional screening firm, please contact attorney Vince Pascarella, a member of the Colorado Bar and the Director of Legal Compliance at ESR. His contact information is: 415-898-0044, Ext. 241 and [email protected]
- ESR announces the Safe Hiring Certification Training, an intensive 30 Hour online educational and professional development course designed for employers, human resource and security professionals, and anyone responsible for Risk Management and Due Diligence in hiring.The Safe Hiring Certification Training is a self-paced, on-line course that can be accessed at any time from anywhere, including at work. Features of this course include:
- Convenient 24/7/365 availability through any online connection
- 21 self-paced lessons on Safe Hiring practices
- A printable, 190-page workbook to facilitate note-taking and preparation for review quizzes
- Review quizzes after each lesson featuring more than 300 questions about Safe Hiring
- Easy access to useful Safe Hiring web-links
- Sample Safe Hiring forms to help guide your own form development
- Industry certification in Safe Hiring
- Additional audio pointers by author Les Rosen (requires speakers but not a requirement for course completion)
Through this course, participants will obtain the knowledge and skills necessary to implement and manage a legal and effective Safe Hiring program including employment screening background checks. Upon successful completion, participants will receive a Certificate of Completion, marking a significant professional accomplishment. The course is offered at no charge to ESR clients.
The course is available at http://esr.coursehost.com
More information is available at: www.esrcheck.com/ESRonlineSafeHiringCourse.php
- ESR wrote the book on background checks! â€“ The Safe Hiring Manual, now in its third printing, is available from BRB Publications. Click here to read more. The definitive book on pre-employment screening, â€œThe Safe Hiring Manual-The Complete Guide to Keeping Criminals, Terrorists and Imposters out of Your Workplace,â€ has undergone its third printing since its introduction a year ago. The new printing also contains updates and new material.
ESR is pleased to participate in the following seminars across the United States, including three nationwide SHRM Conference: the SHRM National Conference, the SHRM EMA Conference and the Global Screening Conference.
Current 2006 Spring/Summer Schedule
May 16 and June 20, 2006 â€“ â€œAvoid Negligent Hiring,” Seminars for Solo HR Departments, San Jose, CA For more information and Registration, See:>>>
June 27/28, 2006 Washington, D.C. “Avoid Negligent Hiring-Best Practices and Legal Compliance,” SHRM 58th Annual Conference & Exposition
July 27, 2006–Kennedy Information National Audio Conference on, “Background Checks and Recruiting — Avoiding Negligent Hiring.” (Details to be posted)
November 13, 2006 –Tampa, FL-Keynote address at the Annual Pre-Employment Screeners Conference (Intended for background firms and record retrievers ) ” The Top Ten Ways for a Screening Firm to Be Sued Out of Existence by Employers and Consumers ” See: http://www.searchforcrime.com/Conference/body.htm
Contact ESR for further details.
Employment Screening Resources (ESR)
1620 Grant Avenue, Suite 7
Novato, CA 94945