Ask the Expert
Background check liability
Question: I was wondering if a background check is not completed for pre-employment, and a few weeks later an employee discloses that they have a warrant out for their arrest. What are the legal implications if the employers wants to now run a background check? Or is the employer liable if something happens know that they know this information and didn’t run a background check?
Answer: Background checks are not required by law, but many employers conduct them as part of the hiring process, particularly when they have employees who enter customer homes, have access to sensitive customer information, drive as part of the job, or work with vulnerable clients such as the elderly, children, and the disabled. In these situations, a background check also can help prevent against future claims of negligence if an employee harms a customer or client. However, these checks typically involve criminal conviction records, not arrest records, since the federal Equal Employment Opportunity Commission (EEOC) and many states have taken the position that arrest records should not be used in the hiring process and convictions should be used only if job-related (as discussed below).
If the employer does not currently have a policy regarding checking employee backgrounds beyond employment dates and references, whether it should conduct a comprehensive check now because of this arrest is a question for your attorney. Most HR and employment law compliance experts suggest conducting comprehensive background checks as part of a uniformly implemented policy, though checks may be tailored to obtain specific information that relates directly to the individual’s suitability for the particular job and the organization. For example, employees who drive as part of their job should have their driving record checked in any state they have held a driver’s license but may not need a full criminal record check, while a criminal record check may be appropriate for employees who regularly enter customers’ houses.
It is true that employers that do not conduct background investigations may be liable for the future violent acts of their employees for failing to investigate adequately the backgrounds or qualifications of applicants. Under this legal theory, generally referred to as “negligent hiring,” the employer can be liable for negligence to third parties for hiring or retaining an employee that it knew, or should have known, was a potential risk to others. Negligent hiring claims often involve employees in positions that pose a threat of injury to the public, such as a driver or delivery person, and who subsequently attack an employee or third party, such as a client or customer. To establish negligent hiring, the person harmed generally must show: (1) that the employer did not exercise reasonable care in hiring the employee (for example, by conducting a background check); (2) that the employee had dangerous tendencies which would have been apparent if the employer had exercised reasonable care; and (3) that the employer placed the employee in a position to injure another person.
However, in this situation, because the employee has an arrest warrant and not a conviction, there is some argument that the employer would not have been able to perform a background check that would have exposed the arrest record because arrest records generally should not be part of any background check. That said, if the employer knows what the arrest warrant is for, and the reason for the arrest is related to the job the employee has been hired to do, there could be some argument that it knew the employee is a potential risk. For example, if the employee is a driver for the employer and has a DUI arrest, that may be relevant information for the employee’s job. Still, an arrest is not a conviction, and public policy supports not taking action based on arrest records, as reflected in the EEOC’s position on arrest records.
The EEOC, the federal agency responsible for enforcing employment discrimination laws, takes the position that employers generally should not ask about arrest records or routinely exclude applicants or employees based on arrests because of the adverse impact these inquiries can have of excluding minority applicants. Some courts also have found that a policy of excluding people based on arrests, not convictions, can have a disparate impact upon protected classes and therefore violate Title VII. See the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available online at https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Some states also have ban the box laws prohibiting employers from asking applicants for employment about arrests or convictions, though New Mexico does not have this type of law for private employers (public employers may not ask about convictions except when required or relevant to the job position in question).
Criminal record checks also must be undertaken with care, and the EEOC has determined that an employer may inquire about criminal convictions, but Title VII issues may still arise if such inquiries lead to disproportionate exclusion of applicants from protected classes. That is, the EEOC’s position is that a conviction may not be used automatically to disqualify a job applicant from employment. Thus, the EEOC maintains that an employer must be able to show the reason for excluding an applicant based on a conviction record is “job related and consistent with business necessity,” and provides specific guidance on how to employers may meet this standard in its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available online at https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
Some HR and legal experts argue that employers may take adverse action (without conducting a background check) at least against current employees who have criminal charges pending if the charges relate to workplace misconduct or affect the employee’s ability to perform the job. For example, if workplace misconduct is involved such as with workplace theft or assault, the employer may conduct an investigation and likely could take action based on the results of the investigation. The employer in this type of situation would be taking action not on the fact of an arrest or charges filed against the employee but rather based on information found in its own investigation. Similarly, if an employee is unable to come to work because of incarceration for an arrest, the employer could take action under its normal attendance policies, for example if it has a policy that considers a three or more day absence without proper notice a voluntary quit. Employers also may consider placing an employee on a leave of absence if a criminal charge is disruptive to the workplace, such as in high-profile cases involving allegations of domestic or sexual abuse against a senior executive.
Miranda Wooten, PHR | Human Resources Business Partner
eEmployers Solutions, Inc. | eESI
p: 303.721.6077 x 166 • c: 303.489.4808 • f: 303.721.6113
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