Employee background checks are you within your rights?

The employer's dilemma: negligent hiring versus
violation of civil rights.

Editor's Note: This is the first of a two-part series about negligent hiring. Part two will appear in the May/June issue, and it will discuss those questions an employer can ask job applicants without violating civil rights laws or the Illinois Human Rights Act.

By Janet E. Goldberg
and Constance L. Bauer

John Doe, a minority applicant for a position with your youth recreational program, has a history of convictions for sex-related crimes.

If you, the employer, hire John Doe, and he subsequently harms a child enrolled in the program, you may be held responsible for the child's injuries under the emerging legal theory of "negligent hiring." However, if you automatically deny John Doe employment on the basis of his conviction record, you may be held to have discriminated against him in violation of the civil rights laws.

Thus, it is important for employers to know what they should ask job applicants so as to best protect themselves from subsequent "negligent hiring" lawsuits, as well as what they legally can ask job applicants without violating the civil rights laws.

Negligent hiring actions and the duty to conduct background investigations

There has been a recent trend in state and federal courts to hold employers responsible, under the theory of "negligent hiring," for injuries to third persons caused by one of the employer's employees. The theory underlying "negligent hiring" is that the employer has a duty to conduct background investigations on all employees to determine if a person is suitable for employment.

If the employer fails to adequately check the employee's background, the employer may be responsible for harm to third parties caused by that employee.

A recent Illinois Appellate Court case illustrates how an employer may be found responsible for negligently hiring a person who was unfit for the job. In that case, a 17-year-old girl sued a trucking firm for negligently hiring a driver who had a history of convictions for violent, sex-related crimes. The employee was hired after he completed an employment application, and responded that he had no prior criminal convictions.

The employer made no attempt to verify the driver's statement about prior convictions before hiring him. Subsequently, the plaintiff was picked up by the truck-driver and raped by him in the sleeping compartment of his truck.

The Illinois Appellate Court decided that the plaintiff should be permitted to go to trial on her claim of "negligent hiring." This decision was based on the employer's duty to check into the truck-driver's background to determine if he would be suitable for employment or if he would create a danger of harm to third persons. Whether

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Background checks

the trucking firm met that duty was a question of fact for the jury to decide.

No absolute rules have yet been established regarding an employer's duty to conduct background checks. The existing case law does seem to suggest, however, that an employer's legal duty to investigate applicants' histories varies according to the nature of the employment involved.

For example, where the position involves a high degree of risk to the public (e.g., a security guard or the director of a youth recreational program), a higher standard of care for conducting background investigations prior to hiring may be imposed on the employer. By contrast, employers may have a very light burden of investigating the prior criminal record of applicants for the position of office receptionist.

Finally, employers should understand that they may be responsible to all members of the public to whom they might reasonably anticipate would be placed in a position of injury as a result of their

negligent hiring. Employers should also be aware that they may be held responsible for negligent hiring even where their employee injures a third person outside the scope of his employment, as long as there is some connection between the person's injuries and the fact of employment.

In conclusion, where the nature of an employment position is such that an employer might reasonably anticipate that members of the public would be placed in a position of injury, the employer must conduct a thorough background investigation of all applicants for that position.

However, employers must proceed cautiously. The denial of employment on the basis of a criminal record may lead a minority applicant to file a lawsuit against the employer for discrimination on the basis of race, sex, age, handicap or some other form of discriminatory violation of the civil rights laws. This can happen even though denial of employment was based upon the employer's good faith concern with the conviction record.

Moreover, many states' fair em-

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ployment practices statutes expressly prohibit an employer's inquiry into a job applicant's arrest and conviction records.

Suggestions for employers

How, then, can employers avoid being held responsible for "negligent hiring" when they are forbidden by law in some instances from asking prospective employees about their criminal histories, and when they may face discrimination lawsuits for disqualifying applicants from consideration on the basis of such criminal records?

The following suggestions will help employers avoid being held responsible for "negligent hiring," while at the same time avoid violating the civil rights laws.

• Attempt to obtain a release from all applicants allowing you to conduct background investigations.

• Investigate and verify all personal references, prior addresses and prior employers listed by the applicant.

• Never inquire about applicants' prior arrest records.

• Make sure that inquiries regarding applicants' criminal conviction records are related to a bona fide occupational qualification.

• Be sure to follow any question on a written job application regarding criminal convictions with a statement that an answer of "yes" will not automatically disqualify the applicant from consideration, and will only be considered in relation to specific job requirements. The Equal Employment Opportunity Commission (EEOC) strongly suggests that the words "will not" be printed in bold-face type and be underlined.

• Verify responses regarding criminal histories.

• Document your investigation.

• Discuss any discrepancies with the applicant.

• Never reject an applicant on the basis of a criminal conviction unless the conviction has a direct relationship to the requirements of the particular job.

• Consider factors of rehabilitation, good work record and remoteness at time of the conviction. Employers should also specifically ask applicants for the date of any convictions, the circumstances of the offense, and the applicant's subsequent efforts to rehabilitate himself to ensure that such ameliorating factors are properly considered.

• Investigate all applicants in the same manner, and be very careful in rejecting minority applicants.

ABOUT THE AUTHORS: Janet E. Goldberg is a partner and member of Sachnoff, Weaver & Rubenstein, Ltd.'s labor and employment law group. She received her JD from the University of Illinois College of Law in 1975, and she is admitted to the Illinois and Missouri Bars. Constance L. Bauer is an associate at the law firm of Sachnoff, Weaver & Rubenstein, Ltd. She received her JD from the University of Michigan Law School in 1986, and she is admitted to the Illinois Bar.

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