January 10th, 2018
Importance of Background Checks and Employer Liability for Negligent Hiring
One of the challenges in hiring employees is making important background checks without impinging on the privacy of prospective employees. On the one hand, failing to make requisite background checks could expose the employer to a claim for negligent hiring if the hired employee engages in violent or criminal behavior within or without the scope of ones employment. Conversely, background checks that expand to the prospective employee’s personal details, where such an employee has not authorized such access, could lead to privacy claims. Additionally, where an employer uses information such as the employee’s health (e.g. finds out that the employee suffers from cancer) that they get through unauthorized background checks to advise hiring decisions, the employer could face discrimination claims. Bearing such contrasting aspects, human resource (HR) practitioners need to acquaint themselves with strategies that help them to conduct background checks while avoiding running afoul of antidiscrimination laws and privacy legislation.
Negligent hiring claims are based on tort law. For the employer to assume such liability, there must have been a duty that the employer failed to meet thus resulting into the occurrence of a previously foreseeable harm (Lewis & Gardner, 2000). Accordingly, the claim of negligent hiring arises since the law, through various court rulings, deems employees to have a duty to hire employees who do not constitute a danger to other people (Lewis & Gardner, 2000; Peebles, 2012). They must thus use reasonable care while hiring individuals in various positions. The danger posed by prospective employees is established by assessing their past behavior. In the event that an examination reveals a criminal past, then any subsequent criminal activity from such an employee would be deemed to be foreseeable harm where the employer did not conduct reasonable background checks (Lewis & Gardner, 2000). Determining whether a prospective employee’s behavior poses a threat of injury in future differs with the type of employment involved. However, a plaintiff could argue that the employer acted negligently by hiring an employee with a criminal past even where the resultant harm was not committed within the scope of the employment duties (Winn, 2003). Thus, the core issue in negligent hiring is not the employee’s conduct but the employer’s conduct during the hiring process.
Despite the need to conduct pre-employment screening, employers face various challenges in getting past information on prospective employees. For instance, past employers are becoming increasingly averse to providing prospective employers with information on employees who worked at their organization out of fear of attracting claims such as defamation (Meinert, 2011; Peebles, 2012). Secondly, background checks could also subject the employer to discrimination and privacy claims depending on the way the employer conducts the hiring process. For instance, where the employer automatically weeds out individuals with such records as arrest reports, the employer could face discrimination claims based on the provisions for equal employment opportunity commission (Meinert, 2011; “How to avoid Repercussions,” 2006). Additionally, various states have limitations on the length of period into the past for which employers can check the client’s previous criminal activities with respect to the nature of the crime. For instance, in the state of California, “employers cannot inquire about marijuana convictions more than two years old” (Winn, 2003, p. 42). Such challenges have necessitated employers to adopt strategies that enhance their background-checking practices while not subjecting themselves to discrimination and privacy claims.
A trend arising to counter the hesitant of previous employers providing information on prospective employees is the use of internet tools. One of such internet solutions is the use of online surveys such as those offered by SkillsSurvey and Checkster. In such surveys, the recruiter asks the prospective employee to forward a link to his references where such referees fill out a survey about the recruit (Meinert, 2011). To avoid the recruit cheating the system, the recruiter provides safeguards such as systems to flag responses sent through the same domain (Meinert, 2011). Such surveys help the respondents provide a comprehensive review of the recruit when they are designed to provide anonymity (Meinert, 2011). Other entities outsource the screening processes for most position, only doing in-house screenings for senior positions. In this respect, the provider of the screening services checks out all the references provided by the applicant either through phone calls or e-mail requests thus avoiding a case where the employer is too pre-occupied to carry out reasonable background checks for all employees (Meinert, 2011). Another online strategy that employers are turning to is to evaluate the prospective employee’s activity in various social media. This however presents a potential pitfall where the employer uses information generated from such sources to avoid employees who would lead to aspects such as the employer paying higher health insurance premiums (Meinert, 2011; Peebles, 2012). Accordingly, employers need a policy to avoid discrimination and privacy intrusion while ensuring that they conduct due diligence in hiring employees.
Various strategies could help the employer avoid claims based on negligent hiring, privacy concerns and discriminatory practices. One of these is to get the prospective employees’ consent to perform background screening (“How to avoid Repercussions,” 2006). Such consent should indicate that the background checks would be continuous to provide the employer the opportunity to perform further checks even when an individual has been employed. Secondly, employers need to include standard and specific questions that inquire about the prospective employees’ past criminal convictions in their application forms (Meinert, 2011; “How to avoid Repercussions,” 2006; Winn, 2003). Additionally, the application forms need to caution the applicants against providing false information by indicating that such false information constitute a ground for dismissal (“How to avoid Repercussions,” 2006). Thirdly, employees should have a standardized procedure for conducting background screening to avoid claims of discrimination (Peebles, 2012; Meinert, 2011). The background screening need not be an activity conducted for some employees when need arises but rather it need to be an organizational policy for all employment positions. Finally, employers need to identify specific individuals who will be charged with conducting such background screening and train such individuals on the scope and limits of background screening (Meinert, 2011).
Conducting background screening on prospective employees is required to avoid claims of negligent hiring in future when such employees are involved in criminal activity. However, employers need to acquaint themselves with strategies that enable such background checks while avoiding running afoul of antidiscrimination laws and privacy legislation. One potential has been provided by use of online tools that enable employers to alleviate the challenge posed by hesitance of previous employers to provide information on such prospective employees. The employers however need to get consent from the prospective employees for conducting background checks to avoid privacy claims. Additionally, the employer needs to have a universal policy for background checks to avoid discrimination claims. Ultimately, though privacy and discrimination are important concerns, performing pre-employment screening is critical for employers as part of their duty to ensure they hire individuals who do not constitute danger to other people.
How to avoid the repercussions of negligent hiring. (2006). HR Focus, 83(10), 4 – 7.
Lewis, K., & Gardner, S. (2000). Looking for Dr. Jekyll but hiring Mr. Hyde: Preventing negligent hiring, supervision, retention and training. Hospital Topics, 78(1), 14 – 22.
Meinert, D. (2011). Seeing behind the mask. HR Magazine, 56(2), 31 – 32, 34, 36 – 37.
Peebles, K. A. (2012). Negligent hiring and the information age. How state legislatures can save employers from inevitable liability. William & Mary Law Review, 53(4), 1397 – 1433.
Winn. E. D. (2003). Employee crime and employer punishment. Progressive Rentals, 40 – 42, retrieved from http://www.rtohq.org/rent-to-own/files/backgroundcheck.pdf