Pre-Employment Screening and Background Checks – Part I

April 4, 2007

There is a growing trend among employers to use various pre-employment testing and background checks. Screening can range from credit reports and criminal checks to education and reference verification or motor vehicle records checks. I frequently answer questions for employers who are concerned about the legal issues related to obtaining this information. In my next few posts I will address some frequently asked questions.

What is an Employer’s obligation to obtain background information on prospective and existing employees?

  • Employers are under a common law duty to exercise reasonable care in selecting, supervising and controlling employees.
  • The duty includes reasonable investigation into the prospective employee’s work experience, background, character and qualifications.
  • Look at the relationship between your customers and employees – is the potential for harm foreseeable? What kind of work and contact with the public do your employees have?
  • Look at relationships between employees – has any conduct or history made the potential for harm foreseeable?

How can I minimize the risk of being sued when using background information?

  • Apply the same procedure to all employees and/or applicants to avoid claims of discrimination in evaluation.
  • Observe the requirements imposed by the statutes governing the data you obtain.

In my next post we will review some of the statutes that apply to some of the more commonly used reports.