by Renee Mielnicki, Esq.
We review and create a lot of employee handbooks so the subject of criminal backgrounds checks comes up regularly. We are frequently asked if we think employers should run criminal background checks before hiring employees. Since that question comes up so much, I thought it might be a good idea to blog about it. So, if you want to know if you should be running criminal background checks on employees before you hire them, the simple answer is “YES.” Here are some reasons why.
Probably the best reason is to reduce your potential exposure to a lawsuit in the event of a violent act on the part of one of your employees. Generally, employers have a legal duty to prevent foreseeable harm that could occur to their employees and third parties with which they regularly interact, like a customer. This theory stems from a legal cause of action known as negligence which places an affirmative duty on business owners to prevent injuries that are foreseeable (and of course, the fault of the company somehow). This principle includes those that can result from an employee that purposefully causes bodily injury to another employee or a customer.
Let’s take this example: Your business is to deliver products, such as appliances, to the homes of your customers. It would be advisable to conduct criminal background checks on the employees that are going into homes before you hire them to make sure they have no criminal record that shows they have a propensity for violence. Why? Because if they do, and they go into the home of one of your customers and assault them, whether sexually or physically, you may be liable to your customer civilly. The theory is known as negligent hiring and it works like this: If this customer sues you and discovers that your employee had a criminal record that consisted of something like assault or sexual assault and that you never even checked their background (or even worse, you did and hired them anyway), you could be liable to this customer because it was foreseeable that this employee could cause harm to your customers given the nature of their criminal record and the nature of the job. If you fail to conduct a check at all, the customer will argue that you had a duty to do so and that a simple, reasonable investigation into the background of this employee would have determined that he has dangerous propensities and he should have never been hired given his role within the company. “If he were never hired, this would have never happened” is what will be argued.
Contrast that fact pattern with this one. Take the same employee who assaults a customer in her home. This time let’s assume we have a company policy and procedure of checking the criminal background of all employees before we hire them, and in this case, we did so and this employee had no criminal record. Is the customer were to sue, the employer could defend the claim by saying it did its due diligence and the harm that resulted to this customer was not foreseeable. I can’t say if the employer would win, but at least it gives a defense to the claim and hopefully reduces the damages.
It’s also possible that failing to conduct criminal background checks can result in liability under OSHA (the Occupational Safety and Health Act). OSHA’s general duties clause places a duty on employers (just like general negligence law) to keep its workplace free of any recognized hazards that are likely to cause death or serious physical harm to its employees. Even though OSHA and common law negligence are different legal theories, I see their rules as similar. Both laws impose a duty upon employers to take action to prevent harm to other employees where the harm could have reasonably been prevented and where it was foreseeable that it was going to occur. The only difference is that OSHA is not concerned with third parties, such as your customers, but rather only with your employees. However, their standards are similar as far as company liability that stems from a violent act. In certain instances, if an employer has knowledge, or should have had knowledge through its own reasonable investigation, that an employee or a third party with which the employer interacts, has dangerous propensities and takes no action to prevent harm from occurring, OSHA may be able to issue a citation against the employer.
Liability under the general duties clause for acts of violence does not seem to be as broad as the common law negligence theory. This issue has come up a time or two for me, and I have found that OSHA does not have a lot of guidance on workplace violence liability under this statute. The entity seems to be mainly focused on certain industries, such as social services and healthcare, where they believe that the risk of workplace violence is greater. But, just because this seems to be the entity’s focus now doesn’t mean it always will be in the future. That’s why conducting reasonable criminal background checks on all applicants offered a job before they begin employment is always the best practice from a liability perspective whether we are talking about common law negligence claims or liability under OSHA.
One last reason to consider conducting criminal background checks is not a legal one, but rather a business one. Checking criminal backgrounds can also help to reduce the likelihood of theft within your organization. I’m sure you will agree that hiring a CFO that has been convicted of money laundering would not be in your best interests as a business. A simple criminal background check could prevent you from being the next victim of such an employee.
Of course a lot goes into the process and procedure as far as how to conduct criminal background checks. But for today’s purposes, I only addressed why you should be doing them in the first place. If my blog has convinced you that you should be doing criminal background checks, and you need help getting started, please contact us by email at firstname.lastname@example.org.
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