D+AS MAGAZINE

LEGAL — Do You Really Know Your Employees?

© 2000 Door & Access Systems
Publish Date: Spring 2000
Author: Staci L. Ketay
Pages 42

Legal Tips

Do You Really Know Your Employees?

By Staci L. Ketay, Attorney
McBride Baker & Coles

In this era of increasing lawsuits about employment, employers are faced with ever-increasing risks of liability. As more employers are being held accountable for the actions of their employees, you should know as much as legally possible about your employees before hiring them. By conducting a background check on all job applicants, you may be alerted to potential problems and avoid lawsuits for negligent hiring and wrongful termination.

Here’s how. Before conducting a background check, you must get the applicant’s written permission. You should tell the applicant that any job offer depends on their full cooperation. Include the following sample language on the authorization form: "I hereby authorize you to release information regarding my prior employment to (prospective employer) for purposes of its pre-employment investigation. You are released from any and all liability that may result from furnishing such information."

Job responsibilities determine the areas that you will want to investigate. For example, the driving record of the office manager may not be important, but the driving record of the service technician could be very relevant if that person will be constantly driving the company’s service truck. Employers may want to explore the applicant’s background in the following areas:
  • Employment history. Contact the applicant’s former employers and confirm the position(s) held, dates of employment, salary, and job responsibilities. Consider asking if they would re-hire the applicant if he/she re-applied to their companies. In order to encourage prior employers to cooperate, stress that the information will be kept confidential. More than 20 states provide immunity to an employer who, in good faith, discloses information about a former employee’s job performance to a prospective employer. Yet there is still risk, and employers should consult legal counsel before providing complete disclosure.

  • Educational history. Confirm, in writing, any degree that the applicant claims was earned. You can do this by contacting the college or university’s registrar’s office.

  • Credit history. Credit checks may be important where the job will require the applicant to be involved in financial matters. However, you must notify the applicant in writing if he/she was not hired because of the results of the credit report.

  • Criminal history. Researching an applicant’s criminal history is a complicated process with a risk of violating an applicant’s constitutional rights. State laws differ. Therefore, seek legal advice before you check an applicant’s criminal record.

  • Driving history. If the job requires the applicant to use a company vehicle or do a lot of driving, confirm that the applicant has a valid drivers license and a clean driving record.

Although there are many pitfalls facing employers, conducting background checks on potential hires is one way to minimize risk. Develop a background check procedure and use it consistently. Check the same number of references for every applicant to avoid claims that your hiring practices are legally unfair.

This written material is not intended to be and should not be used as a substitute for specific legal advice, since legal opinions may only be given in response to inquiries regarding specific factual situations. If you have any questions about your company’s policies for conducting background checks, you should consult your legal professional.

Naomi R. Angel, legal counsel to DASMA, is experienced in commercial litigation, and is a trained mediator advising businesses on dispute resolution issues. Staci L. Ketay concentrates in the area of labor and employment law. Naomi and Staci both practice with the Chicago law firm of McBride Baker & Coles and can be contacted at 312-715-5700 or angel@mbc.com and ketay@mbc.com.