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Hiring an employee with a criminal past July 7 , 2006 Excerpted from Tennessee Employment Law Letter, written by attorneys at the law firm Miller & Martin A Nashville, Tennessee, television station recently presented a multipart news exposé detailing its discovery of convicted child molesters and other sex offenders working in McDonald's restaurants in Nashville and around the country. By placing customers in harm's way, McDonald's put itself at risk for more than bad publicity. This article focuses on the possible consequences of failing to screen job applicants properly and offers some advice on how to find out what you need to know without running afoul of their rights. Q: I'm hard-pressed to find enough qualified employees to fill all of my open positions. If someone seems OK, we typically hire them, figuring we can just let them go if things don't work out. We've never done much in the way of screening or background checks. Do we have to? A: Do you have to? Probably not. Certain types of employers (such as law enforcement agencies) are subject to special rules for screening applicants. Also, if you "bond" employees or carry any type of employment practices liability insurance, your underwriter may require certain types of screening on covered workers. By and large, though, most employers aren't required legally to perform any particular kind of applicant screening. You aren't required to check references, conduct drug tests, or look into an employee's credit history or criminal background. But just because you don't have to conduct the screening doesn't mean it isn't a good practice. Q: Well, what's our potential exposure if we hire someone with a criminal history who later harms a coworker or customer? A: Courts have held that businesses have a duty to protect their employees and patrons from reasonably foreseeable harm, including harm perpetrated by employees. Also, state courts recognize negligent hiring claims. In other words, if an assailant's employer is found to have acted recklessly in its hiring decision, the crime victim can sue the employer for compensatory damages — such as emotional distress and any medical costs associated with the crime — and punitive damages. There's no limit on the amount of damages a jury can award for such a claim. To win a negligent hiring claim, the victim must prove that "a particular unfitness of a job applicant creates a danger of harm to third persons which the employer should have known." Of course, the key question is whether you "should have known" about an applicant's violent or criminal past, and that will be a question for the court to decide. It's pretty hard for a victim to win a negligent hiring claim, particularly since there's no overall duty to conduct criminal background checks. But if an employee says or does something to tip you off that he may have a violent history, you may be held to have a duty to check further. Q: How should we go about checking up on applicants? A: Either on the application form or in your initial interview, always ask applicants whether they've ever been convicted of a crime. If they answer "yes," be sure to follow up to find out the circumstances. Always call all references listed by the applicant. Surprisingly few employers do that, and it's an easy way to catch an applicant in a lie — or find out something about his history that you need to know. It's also a very simple matter to call or go online to check for an applicant's name if your state has a sex offender registry. You should definitely take that step if the applicant will be working with children or have access to customers' homes or other circumstances arise that lead you to believe you might have a heightened duty to protect your customers. You don't need to inform the applicant of any snooping around that you do on your own, and you're free to refuse to hire him based on what you find out — without telling him why. But be careful to act consistently with all applicants. Otherwise, you'll open yourself up to discrimination claims. Q: Isn't the easiest thing just to hire a service to screen applicants for us? A: Using a service to conduct background checks is often the most cost-effective solution to applicant screening, and you'll get a more comprehensive result since those services have access to multistate sources and databases that you don't. But remember, if you decide to use a third party to conduct background checks on an applicant's credit, driving record, or criminal history, you'll need to comply with the Fair Credit Reporting Act, which requires written notice to the applicant and disclosure of any information that forms the basis of a decision not to hire. Copyright 2006 M. Lee Smith Publishers LLC. This article is an excerpt from TENNESSEE EMPLOYMENT LAW LETTER. TENNESSEE EMPLOYMENT LAW LETTER newsletter does not attempt to offer solutions to individual problems but to provide information about current developments in Tennessee employment law. Questions about individual problems should be addressed to the attorney of your choice.
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