Linnertz outlined some "negligent hiring" problems at the 2004 ACCA Conference, noting that an employer has the duty to protect its employees and customers from injuries caused by employees whom the employer knows or "should have known" pose a risk of harm to others. Likewise, an employer may be held liable for failing to investigate, discharge, or reassign an employee, Linnertz said.
"If you go to court and you haven't asked questions about your employee, you will lose your company," he emphasized. He added that lawsuits filed under "negligent hiring" have resulted in increasingly higher awards to plaintiffs in recent years.
Linnertz pointed out that 18 percent of his customers who order criminal searches find conviction information. He talked about other negligent hiring facts.
"According to the Employment Management Association, approximately 52 percent of the applications employers receive will have misrepresented or inaccurate information," he said. "Courts expect employers to know about employees' backgrounds prior to hiring them. Employers can be held liable for any damages to the public caused by an employee, even when the employee's transgression occurs outside the scope of employment."
Linnertz said that background checks are important now more than ever because security issues have changed since the terrorist attacks on Sept. 11, 2001. Since applicants are not likely to discuss their criminal past, simply asking if they have a criminal record is not considered a "reasonable background investigation," according to Linnertz.
Using an example of pre-employment checks for drivers, he added that there are four important aspects of background checks:
1. An employer has 30 days from the first time a driver applies for a safety-sensitive position to get background information that may include positive drug and alcohol tests, and refusals to test.
2. The employer must go back two years from the date of application.
3. Records must be kept for two years.
4. Employers must ask an employee if he/she tested positive, or refused to test, on any pre-employment drug/alcohol test administered by an employer to which the employee applied, but didn't obtain a job within the previous two years.
Linnertz said the choice to check is easy. "You want to have at your disposal a company that will do a background check and find out if people are who they say they are," he said.
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Look for more coverage of the ACCA Annual Conference and Indoor Air Expo in future issues of The News.
Publication date: 03/29/2004