Check it out

Increasingly, employers are facing lawsuits arising out of violent acts by their employees.

Employers face potential liability for “negligent hiring” when employing someone who causes injury to others when the employer “knew or should have known” the employee posed a threat.

Conducting background checks on job applicants may help employers avoid hiring an individual with a potential for violence — or protect them if a hiring decision turns out wrong.

Yet, when conducting criminal background checks, employers face a problem. Laws intended to protect privacy impose requirements that must be followed when looking into an applicant’s past.

Potential liability

In negligent hiring cases, courts have imposed a duty on employers to exercise special care in the selection of employees who will have the opportunity to commit a crime against a third person while on duty.

An employer may be negligent if the employer knew, or should have known, the employee had a propensity for violence and the employment would expose others to that violent propensity. The courts look to many circumstances to determine what the employer should have known and the degree to which violent conduct was foreseeable.

For example, in a Cuyahoga County case, Stephens v. A-Able Rents Co., a furniture rental company was sued for negligent hiring after an employee assaulted a customer. A delivery driver entered the plaintiff’s home to remove a rented bed. After taking the bed out to the truck, the driver returned to the home and asked to use the phone. He then attacked the customer.

The court determined the employer could be held liable because it failed to properly investigate the driver’s background. A jury awarded $3.35 million to the plaintiff.

Following the rules

Ohio cases suggest that, absent reasonable suspicion, criminal background checks of job applicants are not mandatory. However, performing criminal background checks on job applicants may reveal information about violent behavior that would not otherwise come to light during the application process.

When conducting such background checks, however, employers must comply with the Fair Credit Reporting Act.

The Fair Credit Reporting Act governs the use of consumers’ credit information and is intended to protect the privacy of consumers. Most employers are aware that the Act must be followed when checking a potential employee’s credit history. However, it also applies when an employer conducts a criminal background check on a job applicant.

Employers must comply with the Act any time the employer requests a “consumer report,” which means information regarding an employee’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living from a “Credit Reporting Agency.” A Credit Reporting Agency is any person or organization, such as a private investigator, lawyer or security firm, that for a fee, regularly assembles or evaluates consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.

Before obtaining a criminal background check, employers must:

1. Notify the individual in writing that a consumer report may be used. The applicant must be provided with a separate document that contains only this notice.

2. Obtain written authorization from the applicant.

3. Certify to the credit reporting agency that the employer is in compliance with the Act and that the employer will not misuse the information.

The disclosure and authorization forms should be signed by all applicants and retained by the employer together with the application form.

If you don’t hire the applicant

Additional steps must be taken if the employer decides to take “adverse action based in whole or in part on the report.” Refusal to hire based on a criminal background check is considered an “adverse action.”

Thus, in those cases, the employer must do the following:

1. Before notifying the applicant that he or she will not be hired, the employer must provide a Pre-Adverse Action Disclosure. This should include a copy of the applicant’s consumer report and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

Date and send these documents at least one day prior to notification of rejection.

2. The employer must also notify the individual in writing, orally or by electronic means of the following:

* The name, address and telephone number of the third party reporting service (including a toll-free telephone number, if it is a nationwide reporting service) that provided the criminal background report.

* A statement that the third party reporting service did not make the decision and is not able to explain why the decision was made.

* A statement setting forth the individual’s right to obtain a free disclosure of the consumer’s file from the third party reporting service if the individual requests a report within 60 days.

* A statement setting forth the individual’s right to dispute directly with the third party reporting service the accuracy or completeness of any information provided by the third party reporting service.

An employer may be sued by an employee or prospective employee for failure to comply with the notice and disclosure requirements of the Fair Credit Reporting Act. Recovery usually is limited to actual damages; however, the court may award punitive damages against the employer for willful noncompliance. The Act also provides that a successful plaintiff is entitled to recover costs and attorneys fees.

The Fair Credit Reporting Act does not prohibit conducting background checks; it only requires that employers implement certain administrative procedures. If you know and follow these procedures, using criminal background checks as part of your hiring process — especially for safety sensitive positions — can be a wise move. Bradley K. Sinnott ([email protected]) is a partner in the Columbus office of Vorys, Sater, Seymour and Pease, where he practices in the areas of employment relations and industrial injury defense. Tara K. Burke ([email protected]) is an attorney in the Labor Group of Vorys’ Cincinnati office.

A matter of law is presented by Vorys, Sater, Seymour and Pease LLP in cooperation with SBN Magazine.