Keeping It Simple.....
Getting It Right.
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Keeping It Simple..... Getting It Right. |
If you ask for information on your employment application that you don't verify, you are laying the groundwork for a successful negligent hiring lawsuit against you. The law requires you to use "due diligence" in protecting your existing employees as well as the public from possible harm in your hiring practices. Cutting pre-screening costs by not verifying the provided information is not the place to start!
Do you perform all the background searches required to prove that you have performed "Due Diligence" as required by federal and state guidelines?
When attempting to fill a position of employment, an employer has the duty to investigate the background of a potential employee in order to protect other employees and the public. An employer can be held liable in situations where its employee commits a violent act that injures either a fellow employee or a third party. (In fact, this duty is codified in Section 6400, et seq., of the Labor Code.) If an employer hires someone who the employer knows or, should have known, is unfit, in that he or she is a potential risk to others, that employer may be liable to an employee or a third party who is intentionally injured by such and employee. It is estimated that as many as 1,000 homicides occur in the workplace every year in the U.S. and that as many as two million less violent incidents occur per year in the workplace. Employers should be aware that even these less serious violent incidents can trigger significant liability. Employers need to take steps to ensure that their hiring procedures reduce the risk of liability to the greatest extent possible.
Consider this....
Connes v. Molalla Transport System, Inc, 831 P.2d 1316 Colorado, trucking company not held liable for negligent hiring as to sexual assault on motel clerk by on-duty trucker where company had hired a pre-screening company to perform a complete background check and fulfilled there "due diligence".
THEN Consider this....
Nigg v. Patterson, 226 Cal.App.3d 587 an owner of a Laundromat hired youths from a residential treatment program to work in his business. One of the juveniles attacked a customer with a hammer, causing her to suffer severe injuries. The court held that the victim could maintain a cause of action for negligent hiring, finding that the employer did not fulfill his duty to select competent employees by relying on screening procedures of the residential treatment center. IN ADDITION, the court held that the fact that the employee had not been involved in prior similar incidents of assault did not necessarily mean that the attack was unforeseeable.
Safeguard your company from potential fines, penalties and lawsuits by ensuring that your pre-screening and follow-up policies are in compliance with Federal Laws, such as the recently amended Fair Credit Reporting Act, as well as the Drivers Protections Privacy Act.
There are serious legal consequences for employers who fail to get an applicant's permission before requesting a consumer report or who fail to provide pre-adverse action disclosures and adverse action notices to unsuccessful job applicants. The FCRA allows individuals to sue employers for damages in federal court. A person who successfully sues is entitled to punitive damages for deliberate violations. In addition, the Federal Trade Commission, other Federal agencies and the states may sue employers for noncompliance and obtain civil penalties.
Identifying Your Pre-Screening Needs
Federal and most state guidelines require that you use identical pre-screening criteria for you employees. However, if your company hires people to fill distinctly different roles within the company, you may use distinctly different criteria in screening them, provided that you screen each applicant applying for the same sort of job in exactly the same way.
Keeping It Simple....
Sound complicated? It doesn't have to be. EDS can help you determine your pre-screening criteria for each job classification and then implement a cost-effective system specifically designed for your company,
Getting it Right!
You're required by Federal Law to keep applications and all related documentation on file for up to one year for all applicants who aren't hired by your company. The FCRA also mandates that you follow a proscribed format for informing unsuccessful candidates about your reasons for not hiring them and their right to dispute any information acquired on your behalf about them. EDS is well informed on these issues and is in complete compliance with all Federal and State compliance laws.
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