Criminal Background Checks for Prospective and Current Employees: Current Practices among Municipal Agencies.

The purpose of this paper is to discuss background checks and to describe local government agencies' use of criminal background checks. Although interest in protecting one's organization or public agency from negligent hiring lawsuits is growing, little is known about what government agencies

Unemployment is at a 29-year low,[1] and skilled workers are in great demand.[2] Thus, all employers, public and private sector, are under ever-increasing pressure to recruit, select, and retain capable employees. However, as employers are expending great efforts to recruit and select among applicants,[3] they must not overlook the importance of conducting comprehensive selection processes, including criminal background checks when appropriate. Organizations that fail to recognize the risk of hiring into certain positions an individual who has a previous history of violent or inappropriate behavior, and to reduce that risk by checking the individual's background, could find themselves liable for the actions of that individual.

For example, an individual hired as an aide in a home health care program murdered the 32-year-old quadriplegic he was caring for, along with the patient's 77-year-old grandmother. He reportedly committed the murders to cover up thefts he had made from the home. The hiring agency did not conduct a background check that would have turned up six larceny-related convictions. The defendants (Trusted Health Resources and Visiting Nurses Association of Boston) were found negligent in allowing a convicted felon to care for a cerebral palsy victim and were ordered to pay $26.5 million in compensatory and punitive damages.[4] In another case (Tallahassee Furniture v. Harrison),[5] a woman let into her home a man who had been in her house a couple of days earlier as a deliveryman for a furniture company. This man attacked her with a knife, permanently damaging one arm and leaving deep emotional scars. The woman sued the furniture company and was awarded $1.9 million in compensatory damages and $600,000 in punitive damages. During the trial, it was shown that the deliveryman had not completed an application, and that a pre-employment background check was not conducted. A criminal background check would have revealed a long, documented history of violent crime. It is important to note, however, that court decisions have also shown that employers are not liable for every possible violent act committed by an employee. For example, a negligent hiring suit was dismissed when there was nothing in an ambulance employee's background to indicate that he might commit sexual assault on a passenger.[6] These cases suggest that employers are liable for violent acts and harassment committed by a representative of their firm only if they could have foreseen the action. However, since employers have lost 72 percent of negligent hiring cases with an average settlement of more than $1.6 million,[7] it appears that the courts believe a majority of incidents could have been prevented, if appropriate screening had taken place. Thus, it is important that both private and public sector organizations understand negligent hiring, employer liability, and how to avoid hiring someone who will potentially generate a negligent hiring lawsuit.