Damage awards arising out of negligent hiring litigation motivate employers to know a great deal about those on their payroll. In response to such cases, more and more employers are conducting preemployment background investigations on job applicants. However, this process itself can create liability. To protect themselves, employers must be aware of the types of information that can be obtained during background checks and how that information should be presented to potential employees.
All investigations should be conducted in compliance with the Fair Credit Reporting Act (FCRA). The following two cases illustrate issues employers should consider when conducting background investigations. The cases are true, but all names have been changed.
Incorrect records. John Smith had been placed by an employment agency in a security sensitive position with a large corporation in the Southeast. The agency researched Smith's background through a preemployment background investigation company. The company ran a statewide check through the Georgia Crime Information Center (GCIC). The record revealed that John Smith - with the same date of birth and social security number as the applicant - had been convicted twice of driving under the influence, was a multistate offender, used an alias, and was "received into a correctional institution" in 1992. The investigation company detailed the information in a written report and forwarded it to the employment agency.
The agency immediately removed Smith from its client's premises, gave him a copy of the report, and informed him that if he could prove the report inaccurate, he would be reconsidered for future employment. Smith insisted the report was false. He phoned the investigation company and demanded that the report be corrected.
The investigation company's general manager told Smith to contact the director of security at GCIC. If any inaccurate information had been reported, the company informed him, the record could be corrected and reevaluated. Smith took appropriate steps to clear his name through the GCIC.
The record in the system was incorrect. The information was changed, and new documentation was forwarded to all appropriate parties. Smith, seeking compensation for the injustice he suffered, sued the investigation company for breach of professional conduct.
Smith's claim was not successful in court for several reasons.
* The employment agency did not deny Smith the possibility of employment in the future.
* The employment agency offered Smith the opportunity to dispute and revalidate the information.
* The agency reinstated Smith's job and provided remuneration for the week he spent correcting the situation.
* The investigation company reported only what it had found to those who had the need to know, and subsequently informed Smith of procedures to dispute the record.
* Both the agency and the investigation company possessed releases signed by Smith allowing preemployment background screening.
Despite the favorable court ruling, the agency could and should have been more discreet when presenting the information to Smith. The applicant was removed from his position at the company in a way that allowed coworkers to deduce that there was a problem.
If the worker must be removed in the presence of other employees, employers should exercise great caution. Employers should not act in any way that could embarrass or alarm the subject. They should speak in tones that cannot be overheard by others, and they should never become unpleasant or aggressive. It may be necessary at times for employers to establish a diversionary, innocuous excuse for calling an employee away from his or her assigned duties.
Employers should be selective when deciding who will be privy to sensitive personnel information. Management should provide these individuals with regular reminders of the information's confidential nature to reinforce the sensitivity of what they know and how they should act. …