Some time ago, our company was requested to perform a background check on a woman who was applying for a job at a home health agency, with the intent of being employed in a family home. We reported that two years prior to the search request she had been convicted of burglary. Naturally, the woman wasn’t hired. But the story didn’t end there. Three weeks later her name and picture were in the local newspaper following her arrest for the kidnap and murder of a child. Our company was fortunately able to uncover the burglary conviction by researching the court records in the county in which she still resided.

However, in another situation, a background screening company was requested to obtain criminal conviction records. It was instructed to search the county of residence, which it did, and found the subject had no record. Soon after the search had been conducted, however, the subject committed a violent act. A lawsuit was subsequently filed, and in discovery it was found that the subject was a registered sexual offender in another state. So, was the background screening company at fault for not searching more than the county records? Or was the employer liable for not instructing the screener to conduct a more extensive search?

Negligent hiring and negligent retention liability
Negligent hiring and negligent retention liability should be of considerate concern to employers, as courts have historically upheld these theories: "Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability focuses upon the adequacy of the employer's pre-employment investigation into the employee's background.” Garcia v. Duffy, 492 So.2d 435 (1986).

Defining “adequacy”
Until recently, “adequacy” was predominantly interpreted as whether or not there was a background check performed, and negligent hiring lawsuits were primarily predicated on their absence. Yet increasingly we are seeing lawsuits filed in situations where a background check was performed, but further investigation revealed that the subject of the search had crucial information in their background that was not reported. Therefore, employers today should be concerned that adequacy of a background check encompasses the quality of research performed. Although I am not aware of any case to date where the plaintiff has succeeded in persuading the court that a background check of criminal records may not have been adequate, there are current, unresolved negligent hiring cases in which many acknowledge that while there was a background check, it didn’t go far enough. Employers should take precaution so as not to invite a lawsuit by limiting research into an applicant’s background.

Background screening services
Background screening can include a myriad of services, though according to the Equal Employment Opportunities Commission, these checks must pertain to the job for which the subject is applying. With such a broad range of options, where does an employer begin? I recommend the “5-Points Background Search”.

Employers should consider as a base the following crucial services for the reasons stated below:

1. Criminal Conviction Search at the county jurisdiction level: A search within the local courts for both felonies and misdemeanor convictions will provide the most accurate and up-to-date information. Care should be noted to be careful not to act on cases in which arrests did not lead to a conviction, or in which the case was dismissed or expunged. Employers should instruct their screener to research all counties where the subject resided, covering a minimum of the previous seven years and ensuring that the individual’s AKA is searched (if more than one AKA is found, then at least the initial AKA should be researched).
2. Social Security Trace Report: In order to verify counties where the subject lived, a Social Security Trace report from one or more of the credit bureaus, or an Address Identifier Search from a reputable database that maintains address records, should be searched. In addition, these records may contain AKAs used by the subject. Employers should not simply accept past addresses from applicants for fear that they will omit an address in a county where a conviction resides.
3. Motor Vehicle Driving Record: Although the subject’s job may not entail driving, a driving report can provide insight into a subject’s character. These reports may reveal DUIs, Drug Possession, Current Warrants, and convictions for Failing to Appear in Court. In addition, a MVR report may help identify the subject, as most states provide verification of the subject’s date of birth (“DOB”) or will report that a DOB provided does not match within their system. As courts have removed most identifiers due to identity theft concerns, only a DOB in a court record will confirm that the subject applying for employment appears to be the same subject in a court record. In relatively recent times, lawsuits have appeared where the subject provided a false DOB, a record was marked clear, and only later after a crime occurred was it revealed that a search using a correct DOB would have found one or more convictions.
4. A Multi-Jurisdictional Database Search: Several databases have emerged over the last number of years that have compiled bulk records from state repositories and courts, including conviction records, correctional institution lists, sex offender lists, etc. Although no single compilation provides entirely accurate and up-to-date records, such multi-jurisdictional databases may be used to cast a wider net. A database search may reveal a conviction in a county in which the subject never resided, or instances in which a subject was a registered sex offender in another state and never re-registered in the subject state.
5. Federal Criminal Record Searches: A number of heinous crimes employers would want to know about may only be reported in federal district courts and may therefore not be found during standard county criminal record searches. These include such offenses as tax evasion, mail and wire fraud, drug trafficking, immigration law violations, bank robbery, and child pornography.

Other searches should be performed based upon the position for which the subject is applying, as well as the employer’s budget. Although a background check is probably the least costly aspect of the entire hiring and on-boarding program, employers need to consider the return for the money spent, concerning themselves with ensuring an adequate search.

A little over a year after our company reported a subject we searched had committed serious crimes (which were only found when we used an AKA found on his motor vehicle record and returned to the court with that name and DOB), our client advised us that they were changing their background screening policy and would now use a firm that charged them a cut-rate $3.00 per subject. I didn’t ask them to comment on how “adequate” they believed the new searches to be; instead, I’ll wait to read about them when the lawsuit is filed.

Barry J. Nadell is the Senior Vice President of the Background Screening division of Kroll. He founded InfoLink Screening Services in 1994 and served as the company’s president until its acquisition by Kroll in March 2006. He is a founding member and serves on the board of directors of the National Association of Professional Background Screeners, where he was co-chairman of the board in 2006. Mr. Nadell is a licensed private investigator in California and the author of the only book solely related to background screening, "Sleuthing 101, Background Checks and The Law." Mr. Nadell has spoken at numerous national and regional human resources, security and other industry-specific conventions. He has authored numerous articles, been quoted in various publications, appeared on television including “The Bloomberg Report” and “ABC News,” and been interviewed on more than 175 live talk radio programs. © Kroll 2007 All rights reserved.