Why do background checks?
The primary reason employers are doing background checks is to avoid the legal, financial, and public relations consequences that occur when an employee commits a crime while working for you. Employers of all sizes are liable for negligent hiring and negligent retention if they fail to check an employee’s background when they should have. Workplace violence and other “acting out” behaviors that have occurred before are likely to occur again if the circumstances are right. You can only make an educated guess about someone’s background from an interview, sources on the internet, friends in the industry, or common references. Background checks are now a key part of employee hiring that is legal, effective, and prudent. Employee and potential employee backgrounds should be checked using a reputable search firm like Diligent Data Services, LLC. Our prices are competitive and our integrity is the best. If your applicants have job related problems in their backgrounds, you need to know.
When to Get a Background Check
Background checks should always be based on the position. They are most important for jobs where the employer will have the greatest liability if they accidentally hire someone who has misrepresented their background. Typically, this would include any job involving public contact, jobs in health care, work in people’s homes, significant levels of responsibility, driving, handling money, and caring for children or the elderly. If you are not sure about the type of background check needed for a particular position, ask yourself about the consequences of hiring someone with a criminal record who is motivated to harm you, your business, or others while in your employ.
There are a number of things you may want to do yourself and we will help you figure out what they are. When you look for information on your own, make sure you are dealing with official objective sources and make sure you understand the limitations of what you are finding. After that, here is information to help you tailor your background check to the job, your budget, and the applicant. Don’t worry about there being too many options. We will help you sort through the process so you end up with searches that make sense for you.
Negligent hiring generally refers to the hiring of a person that the employer knows or should have known possesses “some attribute of character or prior conduct that would create an undue risk of harm to others in carrying out his or her employment responsibilities.” Past misconduct of the employee is a primary indicator of the employer’s negligence. Courts also consider the nature of work for which the employee is hired. Therefore, the standard of due diligence expected of an employer in its hiring practices generally depends on the employee’s anticipated contact with others in carrying out the normal duties of employment. The employer’s required standard of care increases substantially when the employer anticipates the employee will have greater contact with the public. This enhanced duty of care is also triggered when the nature of the employment fosters close contact and a special relationship between particular persons and the employee.
A plaintiff who alleges negligent hiring must first establish that the employer owed the plaintiff a duty to hire and retain only fit employees. A duty exists when there is some association or connection between plaintiff and employer. Courts have found such connections and corresponding duties in several situations such as: business-customer, student-district/school, landlords-tenants, prison officials-prisoners, youth organization-youth, and housing authority-tenants.
After determining that a duty is owed, the court then considers the nature of the employer’s responsibility. The extent of this responsibility is based on the nature and frequency of contact with others. Therefore, responsibility is enhanced if the contact represents a potential risk of harm to a third party. For example, counselors generally have regular, intimate contact with children who may be emotionally fragile and vulnerable, and is good reason why employers of counselors should exercise considerable care when making hiring decisions.
The last factor that a court considers in determining whether an employer has breached this duty is whether or not any evidence existed prior to and at the time of the hiring. In some jurisdictions the specific injury sustained by the plaintiff need not be foreseeable as long as there was a foreseeable risk of some injury. In these cases, the requirement of pre-employment investigation is well-established. Reference to case law is instructive, as is any evidence in the case at hand that the employer has a reasonable basis to suspect that an employee might represent a problem. Depending upon the seriousness of a suspected problem and/or frequency of occurrence, it might be reasonable for an employer to conduct a review of an employee’s complete training background. This is an important issue in a negligent hiring action since the defendant is held accountable for knowledge held, or which reasonably should have been known at the time of the hiring.
* We are not attorneys, and the above is our understanding of the principles of negligent hiring. We recommend you contact an employment attorney to learn more about negligent hiring.
- COVID 19 Court Updates
- CARES ACT– What Employers Need to Know
- Fair Credit Reporting Act
- EEOC: What Job Applicants and Employees Should Know
- Society for Human Resources: EEOC, FTC Issue Best-Practice Guidance on Background Checks
- New York State Specific Background Screening Info
- PBSA -What Exactly is a Background Check?
- NYS DMV– Drivers Privacy Protection Act (DPPA) Summary
- Gramm-Leach-Bliley Act Information
- Privacy of Consumer Financial Information Rule of the Gramm-Leach-Bliley Act
- GDPR– General Data Protection Regulation
- EEOC’s Enforcement Guidance on Arrest and Conviction Records in Employment Decisions Under Title VII
- Permissible purposes of consumer reports
- Fair Chance NYC (Ban the Box)
- A Summary of Your Right’s Under the FCRA << Must be provided to any applicant who signs a background screening release
- Notice to Furnishers of Information
- Big Data – A Tool for Inclusion or Exclusion?
- FTC: What Employers Need to Know
- Background Check Requirements for Home and Care Managers
- NYS Correction Law Article 23-A