When was the last time you thought about violence in your workplace? Many employers would say “never.” But did you know that a recent study on workplace violence found 57 percent of respondents reported a violent incident at their workplace?
When was the last time you thought about
violence in your workplace? Many employers would say “never.” But did you know
that a recent study on workplace violence found 57 percent of respondents
reported a violent incident at their workplace? Did you further know that
on-the-job violence costs U.S.
employers $36 billion per year, according to the Workplace Violence Research
Employers are increasingly being found liable for what’s called “negligent
hiring.” Negligent hiring is based on the principle that an employer has a duty
to protect its employees and customers from injuries caused by employees who
the employer knows, or should know, pose a risk of harm to others. It allows
employees and anyone else harmed by the conduct to sue employers for the
conduct of other employees.
And don’t think these lawsuits lack teeth. The average damages award for
negligent hiring lawsuits is more than $1 million dollars per case and the
highest award was $26.5 million. That’s without considering the costs of
defending the lawsuit and the accompanying public relations
Now the bad news. Not only can an employer be sued for not doing a background
check, they can also be sued for doing a background check if it’s done
In the old days, a background check consisted of a couple phone calls to a
former employer and a reference check. Modern background checks involve a
comprehensive investigation of the applicant’s credit history, referral
history, criminal record, and Internet profile.
What’s Fair Game?
With the advent of the Google age, there is almost no limit to the amount of
information an employer can seek out for a potential employee. But the law
draws some clear limitations on what can be considered valid criteria and what
crosses the line into unfair discrimination. Just a couple of examples:
• Credit reports. Credit reports are emerging as perhaps one of the most
essential parts of a modern background check. Credit history says a lot about a
person’s personal responsibility, especially with financial matters. Applicants
with horrible histories or huge debts may raise a red flag. However, under the
Fair Credit Reporting Act, employers are required to obtain an applicant’s
written consent before researching a credit report. If that report turns up
information that convinces an employer not to hire an applicant, the employer
must provide a copy of the report to the applicant and let that person know how
the report may be challenged.
• Social networking sites. It defies logic why people put certain information
about themselves online, but they do. Web sites such as MySpace, Facebook, and
Twitter often contain tremendous amounts of information about an applicant that
they publicize willingly. Often much of that information is not reflected in
their résumé. These sites are public and free.
• Criminal history. By far the most common part of a background check,
employers want to know if an applicant has a past criminal history. Failing to
inquire opens the door to negligent hiring lawsuits and potential workplace
violence. But at the same time, employers need to carefully consider how to
handle knowledge of an applicant’s criminal record.
In 2007, the EEOC reaffirmed an employer cannot rely solely on an arrest record
as justification for not hiring an applicant. But an employer can consider
whether the conduct the applicant engaged in makes them unsuitable for the
position. The EEOC reasoned that consideration of arrest records alone has a
“disparate impact” on certain protected minority groups. That is problematic
for employers because conduct that has a disparate impact on a protected group
gives rise to Title VII discrimination lawsuits.
In other words, you cannot consider the fact that the person was arrested for
theft. But you can consider the fact that the person committed theft when
determining whether they are suitable for a position that requires them to
handle money. Easy, right?
• Other types of background information. Medical records, bankruptcy history,
past workers’ compensation claims, school transcripts, military service record
- all are available. But not all are legal to obtain. Medical records, for
example, are strictly prohibited under the Americans with Disabilities Act of
1990. The same is true of prior Workmen’s Compensation claims. Employers need
to be certain that the information they seek is information they are legally
permitted to possess.
How Do I Get Information Without Being Sued?
1. Develop a policy. Haphazard and inconsistent application background checks
are a recipe for lawsuits. Employers should draft procedures to ensure that
background checks are used consistently and not in a way that opens them up to
allegations of discrimination. Adherence to a well-drafted policy and
consistency are essential.
2. Document the process. Nothing scares away plaintiff’s lawyers like a well
prepared paper trail. Documents showing the consistent application of
background checks and describing the proper way in which the results were
considered in the hiring process is your garlic to the plaintiff attorney’s
3. Make sure you know the law. Many states have their own statutes governing
when and how background checks may be conducted. Be sure you are familiar with
both the federal and state laws in your area. Know what types of background
information is strictly off-limits and what can only be used for a limited
purpose. Make sure your HR employees or the people is in charge of conducting
the background checks know it to.
4. Don’t be afraid to ask questions. This is a complicated and fast-changing
area of the law. If you don’t know the answer, the worst thing to do is guess.
It tends to get expensive.
If your company hasn’t conducted a comprehensive review of its policies and
procedures for background checks, now is the time. According to the Department
of Commerce, 30 percent of business failures are due to poor hiring practices,
so the small expenditure of time, money and effort could pay big dividends.