DennisBeaverFebruary 28, 2015 • By Dennis Beaver

“Over my 25 years of family practice in California’s Central Valley, I’ve always trusted my intuition when making a hiring decision. With two front-office employees retiring, we will soon start searching for replacements.

“In this rural area, qualified people are hard to find, and I do not want to miss out on a good hire because of an expensive, time consuming background check. My wife tells me that I am being foolish, that it’s a different America, and what we spend to check someone out could save us a great deal in the long run. Perhaps, but we have never had an issue with dishonesty or problem people in the past.

“After reading your column for years, I will follow your advice. Thanks, “Dr. G.”

Intuition will not prevent a lawsuit

If you ask a labor lawyer or private investigator about the wisdom of relying on intuition — a gut feeling — in making a hiring decision, expect an identical response.

We did just that, speaking with Franklin, Tennessee-based attorney Jennifer Lankford and private investigator Riley Parker of Santa Maria, California. Lankford’s specialty is employment law. She is also a seminar leader for the National Business Institute, one of the nation’s largest providers of continuing legal education.

“Dr. G should listen to his wife. It is indeed a different America with larger risks to employers today — especially in the health care field. Those risks didn’t exist when he began his practice. A good feeling about a job applicant is fine, but it’s only a beginning. Your reader has been very lucky,” Parker observes.

“Mrs. G is absolutely correct,” commented Lankford, adding, “Employers who fail to conduct thorough background checks are inviting trouble, citing types of lawsuits which, many employers have never heard of, resulting in large jury-verdict awards.” They include:

Negligent hiring:

“This is a claim against an employer by an injured party where the employer knew or should have known about an employee’s background which would have shown that person to be dangerous, untrustworthy or otherwise unfit for the job and therefore not hired.

“Lawsuits based on Negligent Hiring arise when an employee commits a criminal act, for example, DUI, theft, assault or, identity theft and it is discovered that a simple background check would have revealed factors questioning the person’s suitability for the position.

Negligent retention and supervision

“For the safety of other employees and customers, management cannot turn a blind eye to unfit employees. Upon learning that an employee might have a problem that interferes with the job and/or the welfare of co-workers, there is an obligation of immediately conducting an investigation and then, if warranted, to take corrective action, such as training, reassignment or termination.

“When steps are not taken to protect other employees or the public and harm results, the employer could be found responsible,” she cautions.

Be wary of online services — Use a consumer reporting agency

And just what are the steps which all employers — that’s right, all employers — need to take?

The common sense answer is to run a background on anyone applying for a job. But there are background checks and real background checks.

The old saying, “If a job is worth doing, it’s worth doing right,” applies here. False economy at this stage — being a cheapskate — can get you sued, as we learned.

The Internet is filled with ads claiming to “Find Out Anything About Anybody for $25.” Is it possible to do an adequate background search this way on a job applicant? Are they worth it? Or, could using one of these sites get you into trouble?

Both Parker and Lankford issued cautionary warnings about many of these services:

“You just can’t find everything online,” Parker stressed. “Many counties do not provide civil or criminal case information to the major, professional data reporting services, and it often takes a visit to the courthouse to examine court files. Without feet on the ground, an enormous amount of information might be missed.”

“The fine print — Terms and Conditions — of many sites admit that they are not Consumer Reporting Agencies and that your results do not comply with the Federal Fair Credit Reporting Act and cannot be used for employment purposes!

“But who reads the fine print?” Parker correctly asks.

Lankford agrees, pointing out “serious, potential violations of federal and state discrimination laws which many employers are often completely unaware of when evaluating job applicants in house or using a service which is not a Consumer Reporting Agency.”

So your applicant was a gang member and spent time in the joint for bank robbery but wants to work in your ice cream shop. Certainly you can refuse to hire her, or can you?

We’ve got the scoop for you, next time. 

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.