Employment Law Chapter 5: Background Checks, References and Verifying Employment Eligibility

Negligent referral

an employer giving a reference may give incomplete information or misrepresent the work of a former employee. If an employer chooses to give a reference, it must not be misleading.

Consumer credit reports:

any communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, character, or reputation, which is to be used as a factor in assessing eligibility for employment purposes.

Potential Harm to customers/clients: negligence

based on idea that each person has a duty to others to exercise reasonable care. If failure to exercise reasonable care is the proximate cause of harm, the defendant is negligent.

Negligent hiring:

employer liability for harm caused by their employees beyond actions taken within the scope of employment. The careless or negligent hiring of an unfit employee may result in liability

Arrests vs. Convictions: Disparate impact

employers may inquire about convictions, but not arrests. Distinguish between misdemeanors and felonies. Felonies are serious crimes. Looking for convictions.

Need consent to obtain a credit report:

employers must disclose to the applicant that a credit report will be obtained, and obtain the applicant's approval in writing, in a stand-alone authorization. The authorization cannot be included as part of the employment application. If, as a result, the employer intends to take adverse action, it must notify the person.

Criminal History

failing to check for a criminal history may be clear evidence of negligent hiring. But legal issues affect access to and use of information

Foreseeability of harm

given the applicant's history and the duties of the potential job - harm was foreseeable or actual knowledge of some facts that raise concerns about whether the employee is unfit for the work

Background checks

used to verify information provided by candidates, and determine whether any disqualifying factors exist. Might include: checking references, verifying past employment and military service, confirming degrees, licenses, other credentials, checking credit reports, inspecting candidates' online personas. Relates to negligent hiring.

Form I-9 and verifying eligibility of employment

For all newly hired workers, within 3 days, the employer must verify employment eligibility by completing federal I-9, which requires certain documents, including: Driver's license, birth certificate, US passport, resident alien registration card, and unexpired employment authorization document o I-9 must be completed within 3 DAYS OF START DATE

Was the conviction relatively recent or distant in time?

Give people a break if their convictions were distant in time.

Legal and illegal aliens

Legal aliens are those who have the legal right to work in the US. Illegal aliens are those who are authorized or documented workers.

Investigative reports

a report containing similar information, but also based on personal interviews with friends, neighbors, and other associates

FCRA does not limit the use of credit report information:

But concern has grown about the use of this information for hiring, especially at a time when many Americans are encountering severe economic difficulties. Ten states do not limit the use of credit reports in an employer's hiring process.

Was the crime related to potential job duties?

Example: Theft would be a worry if you are a cashier or handling cash.

References

Failure to check at least recent references can be evidence of negligence in hiring. Substantive information can be difficult to get because of previous employers' concerns about legal issues: defamation, former employers may retaliate against former employees, former employers may negligently provide misleadingly positive referrals.

Preliminary adverse action and final adverse action notifications, include Summary of Rights document

If an employer intends to take adverse action based on results, it must: notify the person with "pre-adverse action disclosure," and give the person an opportunity to explain or refute the negative information. After taking an adverse action based on the credit report, the employer must give the person an "adverse action notice." Include a summary of rights document and the results, make a decision

Proximity and negligent hiring

Note that negligent hiring can cover bad behavior that is outside the course and scope of employment but where the employment of the bad actor is the proximate cause of the harm

Credit reports and the Fair Credit Reporting Act: in what circumstances do they apply?

Only applies when you hire a credit agency to complete a background check. Credit reports are used by employers in making hiring decisions. The Fair Credit Reporting Act is the major federal law regulating the gathering, sharing, and use of information by employers and consumer reporting agencies. Regulates consumer reporting agencies.

Respondeat superior/vicarious liability

circumstances where the employer is responsible for the wrongdoing of their employees. Under respondeat superior, employers are liable for the harm to others caused by their employees acting within the scope of employment. The employee's actions relate to the kind of work she was hired to perform, they take place substantially within the workplace during work hours, they service at least partially the interests of the employer

Knowledge of foreseeability of harm

consider whether the employer was aware, or should have been aware if proper screening procedures were followed, that the person was unfit for the job. Foreseeability and proximity are related. Foreseeability is whether the harm can be anticipated, proximity is connection between events as they actually unfolded.

Immigration Reform and Control Act

covers employment authorization for non-citizens and forbids discrimination based on national origin (like Title VII): Employers are prohibited from knowingly hiring or retaining unauthorized aliens. Employers with 4 or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship. Get proper documentation.

Defenses to Defamation

qualified privilege (conditional immunity). This protection can be lost if the statement was made with malice (intent to harm the person's rep, or with reckless disregard for the truth, or overly broad publication of the statements.

Defamation:

statements or info provided by a former employer to a prospective new employer. False statements reflect badly on a person are communicated to others, which results in damage to that person's reputation. Defenses to defamation include consent, qualified privilege, and truth.