Source: hr.blr.com --- SHRM Employment Law and Legislative Conference—Washington, DC – March, 2011
Every employer has a legal duty to exercise due diligence in hiring, says attorney Lester Rosen (speaker at National SHRM Employment Law Conference). An employer can be sued for negligent hiring if it hires someone who it knew, or in the exercise of reasonable care should have known, was dangerous, unsafe, dishonest, or unfit for the particular job. But, according to Rosen, there are a number of myths surrounding background checks.
Background Checks Myth 1: There is a national database available to private employers for checking criminal records or false credentials, such as education or employment.
Contrary to popular belief, there is no such national database, despite some advertisers’ claims to the contrary. Unfortunately, the primary method for obtaining criminal records is to physically look at each relevant courthouse. Overall, beware of using commercial databases as a primary tool for records checks. There are substantial issues with accuracy, completeness, and timeliness. If you do get “hits” with such a system, the hit should be re-verified at the courthouse for accuracy and current status.
Background Checks Myth 2: Due diligence means perfection.
Unless set by a statute for your industry, due diligence is a moving target. Employers just need to show that they did the best that could be expected of them, not that they conducted a perfect investigation. Naturally, high risk employers, such as firms that send workers into homes, will have a higher duty of care to show they did not make a negligent hiring decision.
On the other hand, employers will not be protected from lawsuits by simply claiming that conducting a background check would be too costly. Nor will employers be justified for not conducting a background check because their competitors do not conduct them. No matter the excuse, a complete absence of showing due diligence is a risky practice for employers.
Background Checks Myth 3: You can automatically disqualify an applicant based on a criminal conviction without a business justification.
You may not automatically deny employment based on a crimination conviction. The EEOC requires you to take into account the nature and gravity of the offense, the nature of the job, and the time elapsed. However, if the person lied on the application, then the falsehood can be grounds to deny employment.
Failing to perform a pre-employment screening could be detrimental to an employer. Please contact one of our ESG Human Resources Consultants at (888)810-8187 for more information about background checks and/or to get setup today with pre-employment background screenings.
[Read the rest of this article...]