Background Checks – to avoid Negligent Hiring | DCR Workforce Blog

Background Checks – to avoid Negligent Hiring

Reasonable Care

According to statistics released in June by the FBI, there were 1,081 robberies, nine burglaries, two larcenies, and one extortion of financial institutions reported between January 1, 2011 and March 31, 2011. We all know what would happen to the perpetrators of these offenses when and if they get caught. But, we must also try to understand what happens to companies that hire such persons of criminal intent and possible history of similar offenses as employees. An employee who commits an intentional act of fraud, violation of contractual obligations and acts of homicidal assault and battery will invite the unsavory attention to their employer’s hiring process also.

The onus of proving that reasonable care was exercised to verify the antecedents of employees and the possible risk they pose to the society around them on account of the position they enjoy lies with the employer. There are different types of background checks recommended for different positions, while some require a full-service background screening. Every pre-employment screening requires the institution of a thorough search into the contents of a candidate’s resume. It is important to conduct a due diligence on the contents of the resume using other forms which get filled during the interview process (leading to a loss of consistency if the original was cooked up) and the personal interview as well as the reference check process.

What gets verified

The recruitment effort also requires a thorough verification of the various criminal records and abuse databases for all those locations where the candidate claims to have resided, studied and worked using the address, education (where the candidate could have lived for long durations without a permanent address) and employment history. Research recommends that this search be conducted at a national level rather than locally, to avoid possible pitfalls which could be left any candidate who intentionally falsifies the information, with intent to conceal incriminating evidence. Similarly conducting a credit history check is important in a background verification process, unless the candidate belongs to an industry where mobility is very high. Any gaps in employment will also need to be verified thoroughly and substantiated.

The screening process should also relate to the kind of job applied for, before running the verifications. It could result in charges of negligent entrustment, attracting penalties, if a person with repetitive traffic violations were to be hired as a driver or a person with a bad credit history and financial crime to his name were to be hired for a role which requires managing financial resources. Drug screening is another requirement and identity theft must also be ruled out an essential part of the verification process, if one were to ensure the safety of the workplace.
A thorough pre-employment screening has to be made a part of the hiring process and every re-assignment to a different role should be treated as a new job and a screening performed keeping the requirements of the new role in consideration, if one were to be confident of having exercised an adequate duty of care – to ensure that one’ employees are safe when at work – as mandated.

Challenges

The conduct of the background check is a very daunting task when taken in conjunction with other legislation like the Fair Credit reporting Act (regulating the collection, dissemination, and use of consumer information, including consumer credit information) which requires the permission of the person being investigated before a check can be made and sets a limit of 7 years on the validity of every report. There is also a constant threat from the provisions of the Americans with Disabilities Act which could cause an employer serious grief in case of an erroneous background check and denial of employment. The legal situation is further complicated by laws additionally enacted by various states over and above the federal legislation.

When 28 scientists from Caltech – backed by – the Union of Concerned Scientists and the American Civil Liberties Union – litigated against NASA, the Supreme Court bench ruled in favor of stringent background checks re-affirming their importance in ensuring the safety at the workplace.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.

One Response to “Background Checks – to avoid Negligent Hiring”

  1. […] is not to be borne by private employers and that Title VII protections do not prohibit a negative decision based on a person’s criminal history. The EEOC, however, has refused to change any of its guidance in the matter. So, for now, employers […]

Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.