CRIMINAL
BACKGROUND
CHECKS:
You need to do them, but you can pay a lot if you
don’t comply with the legal requirements
By Douglas H. Duerr
W
2015 Issue 2 |
THE
SCORE
22
hat do you really know about the applicant sitting
before you? You can bet that she’s doing her best
to land the job, but is she all that she seems or is
she the one employee who ends up costing you
tens of thousands of dollars in losses and attorney’s fees? As an employer, you have an obligation to provide a safe workplace, including one that is free from
harassment or violent actors. As a business owner, you have a
need to protect yourself from fraudsters and thieves, as well as
from others who might harm the business. While nothing is fool
proof, a critical tool in meeting these obligations is conducting
thorough and lawful background screens. In fact, failure to
comply with the various laws on conducting background screens
can be almost as costly as not having done them at all; however,
there is no question that you really should vet the candidate
sitting before you.
Unfortunately, if you do not dot every “i” or cross every“t,”
you can get hit with a big damages award, even if you were trying
to do the right thing. In fact, the U.S. Supreme Court issued a
decision in 2007 that made punitive damages available if an
employer should have known it was not acting in compliance
with the Fair Credit Reporting Act (FCRA), which I discuss below,
even if there was no showing of actual harm. Plaintiffs’ attorneys
are becoming more aware of the FCRA and its potential rewards,
and more FCRA claims are being brought. In fact, household
name companies such as Pizza Hut and Uber are facing class
actions filed just this year and Publix Supermarkets agreed in
December 2014 to pay $6.8 million for failing to comply with
the requirements for obtaining consent for background screens
in a stand-alone document.
It Begins With the Application
The first step in conducting a background screen is having an updated
employment application. In order to
be thorough (and to test an applicant’s
honesty), your application needs to seek
information regarding identification (i.e., name, home address,
Social Security number, etc.), prior employers, educational
background and other job-related information. But you need
to make sure that your application does not ask too much. For
example, does your application ask about criminal history? In
an increasing number of states and cities that question is now
illegal, at least until some later point later in the application or
pre-employment process. Because the “ban the box” movement
has had growing acceptance, you need to make sure that you
carefully monitor developments where you operate.
Criminal History
Do“ban the box”laws mean that
criminal history cannot be
considered before employment begins? Not
necessarily.