Pre-Employment Screening

There’s an old saying that “past behavior is the best predictor of future behavior”, and we firmly believe that this saying is especially true when it comes to evaluating potential job candidates within the pre-employment screening process. Here’s just two theft-related examples that possibly could have been avoided had the new employer taken the time to perform reference checks on those individuals under consideration for hire:

  • Over a period of 3 ½ years this employee allegedly stole $200,000 from her employer.  It was later discovered that this employee was fired by three prior employers, each of whom believed she was stealing.
  • After pleading guilty to the theft of $41,000 from her employer, it was discovered that this employee had a criminal record showing two prior felony convictions for thefts from past employers.

Next, theft-related issues should not be a prospective employer’s only concern  when conducting background checks. Employers are also faced with the risk of hiring a person who may pose a legitimate threat or risk to the safety and security of the company, its staff, or customers.  Here are two negligent hiring lawsuit examples:

  • A jury awarded $175,000 to a sexual assault victim when it was discovered that the defendant, a company delivery driver had both an extensive criminal and driving record.
  • A lawsuit alleging that a major retailer violated Florida’s negligent hiring statute, after the contractor repairman was charged with sexual battery and murder of the store’s customer is still pending.

We know that sometimes it is difficult for a retail manager to take time from their busy schedules to check an applicant’s background and previous employer references.  However, this is a task that must be performed and done according to law.  While it appears that Fair Credit Reporting Act (FCRA) laws do not apply to those reference checks, criminal background checks, and drug record checks done by the prospective employer’s own staff as part of their regularly assigned duties, we recommend the applicant always sign a disclosure and authorization form (approved by company attorney) prior to commencing the background check process.  To help reduce the risks of potential negative hiring lawsuits, the below simple steps are worthy of consideration: 1.) Discuss and clearly resolve any gaps in employment with the prospective candidate;  2.) Criminal records searches  should be conducted in all counties where the applicant has lived or worked over the past five to seven years; 3.) Many companies differ as to the number of previous employer references to be checked. We like to see a five-year minimum reference check be completed; 4.) If you are a user of ‘temp or independent’ people, we believe that it is important to know what type of backgrounds are being done by the agency.  However, we find it unclear as to whether background checks on independent contractors are covered by the FCRA.  Therefore, your attorney should be consulted in this matter, as well as in the establishment and compliance of all the company’s human relations policies. $

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