EmployeeScreenIQ Blog

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… worker could come into contact with a person with a history of violence. (Kind of sounds like the Negligent Hiring Doctrine) How would it know this; the answer is simple, comprehensive screening of their employees.

Ontario employers face tough new violence laws

There were plenty of warning signs of trouble in the months before nurse Lori Dupont’s final shift at Hôtel-Dieu Grace Hospital in Windsor, Ont.

In February of 2005, she had broken up with Marc Daniel, a 50-year-old …

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While we respect and admire Workforce Management, we were troubled by the article, “Burden of Proof,” which was part of a special report on Background Checking (February 2010 issue).  Having been quoted in this article, I was disappointed that my quotes, and those of one of my colleagues, were presented out of context.   The author attempts to make a correlation between the lack of empirical data on the ROI of background screening and the benefits of doing so for employers.   The fact is our industry trade group, the National Association of Professional Background Screeners (NAPBS), has not conducted such studies.  However, the author fails to mention that such studies do exist outside of the trade group.

Additionally, some important points and studies on background screening were left out. For instance:

• One report by the Association of Certified Fraud Examiners found that the median loss for small firms with fewer than one hundred employees was $190,000. (http://online.wsj.com/article/SB10001424052748704533204575047594152725262.html?mod=WSJ_Technology_RIGHTBottomSBHeadLines)
• The Society for Human Resource Management says that 70% of all job applications provide information that is not fully accurate. (http://blogs.wsj.com/law/2009/11/13/just-say-no-employers-wisening-up-to-resume-padding/)
• The average jury award for negligent hiring against a company was $870,390 in 2000, according to Barry J. Nadell, former president of InfoLink Screening Services, in Chatsworth, California.

Probably more than anything, the ROI comes from bad press. Consider the following:

• The news that a Radio Shack chief executive falsified his diploma, causing their stock to tumble drastically.
• Last week’s revelation that at least 10 senior executives and directors at publicly-traded companies had corporate biographies claiming unearned academic credentials.

Background screening is one of the most important aspects of the hiring process; in fact, Workforce Management has published many articles over the years citing similar stats, studies and horror stories.

While I agree that the EEOC does have several initiatives to curb some background screening practices, it’s a far stretch to say the burden of proof will be on employers.  Admittedly, some companies are performing screening in a less than desirable manner.  However, NAPBS members have worked hard to separate themselves from these types of companies.  If background screening is done properly, it finds the right jobs for the right people.  If the selection of employees is done properly and no discriminatory hiring practices are utilized, the EEOC finds no cause for action.  Consider that fact that the largest user of background screening services in the world is the U.S. Government and their contractors!

Jason B Morris, President

EmployeeScreenIQ

Past Co-Chairman NAPBS

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The family of a heart attack victim has filed a wrongful death lawsuit against the emergency room doctor, hospital and hospital owners responsible for his care for wrongful death, conspiracy, negligent hiring and supervision.  The family alleges that the doctor purposely let his patient die in order to steal his Rolex watch.

While there is no mention of the vetting procedure the hospital followed with regards to the hiring of this doctor, I am sure this information is forthcoming.  Considering the level of responsibility that goes along with those who provide medical care to the sick and dying, anything short of a comprehensive background check is totally unacceptable.

St. Joseph’s Medical Center emergency room doctor steals Rolex leaves patient to die

Stockton, CA—A St. Joseph’s Medical Center emergency room doctor is under fire by the family of a retired Manteca police Lieutenant who died from a heart attack last June. The family alleges the doctor did not resuscitate their father so he could steal his Rolex. The adult children of the retired police official filed a wrongful death lawsuit last week, as reported by KTXL.

According to the lawsuit, Jerry Kubena Sr. was rushed to the St. Joseph’s Medical Center on June 1st for heart problems. Emergency room physician Dr. Cleveland Enmon allegedly allowed Kubena to die from a heart attack after he noticed his Presidential Rolex watch on his wrist. Two nurses reportedly noticed the watch was missing from the body of Mr. Kubena, and that a bulge appeared in the doctor’s pocket. The nurses reported the missing watch to security, who then told everyone to remain where they are. The lawsuit claims Dr. Enmons somehow slipped outside the hospital and walked into the parking lot, which was caught on the hospitals security cameras. A nurse decided to follow the doctor, and witnessed him throw something from his pocket into a grassy area in the parking lot. The nurse reportedly brought security to the area where she saw Dr. Enmom throw something, and recovered Mr. Kubena’s Rolex. Dr. Enmon was apparently confronted with the hospitals security footage, and was fired on the spot.

The civil lawsuit charges Dr. Cleveland Enmon, St. Josephs Medical Center, and hospital owners Catholic Healthcare West for wrongful death, conspiracy, negligent hiring, and supervision. The lawsuit also claims St. Joseph’s Medical Center tried to cover up the emergency room doctor’s crime after he was fired. Dr. Enmon was also reportedly indicted by a San Joaquin County grand jury last month for grand theft stemming from the death of Mr. Kubena.

Legal News Reporter: Nicole Howley-Legal news for California wrongful death lawyers.

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Recently a long awaited study was published on the recidivism rates of ex-criminals in the United States.  This study known in our industry as the “Blumstein Study” examined New York State Arrest records for more than 88,000 individuals who were first arrested in 1980.  Their recidivism rates were followed for 27 years through 2007.  The study which was published in the Journal of Criminology was conducted by Carnegie Mellon Professor Alfred Blumstein and Co-Author Kiminori Nakamura.

To summarize the report, ex-offenders do in fact have a high rate of recidivism within the first five years after arrest.  However, the study suggests that for offenders who “stay clean” for five years or more are much less likely to get arrested.  They suggest that after five years they are almost as likely to commit a crime as the rest of the general population of the United States.

The study is timely and important for many reasons.  First, the Obama administration has made it a point to break down those barriers for individuals who have committed crimes to gain employment.  Secondly, the EEOC has a mission to ensure a disparate class of ex-offenders is not created in the Untied States.  The problem is that the study has a lot of holes.

Noted employment screening industry experts and members of the National Association of Professional Background Screeners (NAPBS)  have commented on this study for months.   This week  Security Management Magazine published a great article on the topic.  One well respected expert concluded that because the study was limited to New York state it fails to find those criminals who may have committed crimes in other states.  Blumstein acknowledges this and expects that might lead to a 10 percent increase in the risk findings after that data is added.  The same expert also notes that because the study only looks at arrests and not convictions the true sample size is greatly reduced.

In my opinion these industry experts are spot on! Having examined the findings of the study I find even more shortcomings.  First, what are the parallels between major crimes and minor ones.  Meaning, how does the recidivism rate for someone convicted of Armed Robbery compare to someone convicted of Petty Theft? Secondly, the study is only able to track the rate of crimes re-committed that the individual has been caught committing.  Many times employees are simply fired and never prosecuted for breaking the law.  Lastly, in the pre-employment screening world, many times we are very concerned with “white collar” crimes.  There is no data on crimes committed at the Federal District Court level.  These crimes could include embezzlement, bank fraud, kidnapping etc..  These are only three examples of where I feel the study falls short.  I will reserve further comments because I feel an article brewing in my head and I don’t want to give it all away here!

In conclusion, the study is very important.  It would have had a huge impact on the recent El Vs. SEPTA case, had it been published a few years back.  It’s also important because it could pose a great defense to employers being sued under the Negligent Hiring doctrine.  What we do know is this; the current administration has made the “ex-offender in the workplace” issue a priority to solve.  The question is do employers want the government telling them which perspective employees are a risk enough to take?

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Deciding whether to hire someone who has a past criminal record is not an easy process.  Federal law prohibits employers from discriminating against those with criminal records.  Conversely, one has to weigh the potential liability of having someone with a criminal conviction working at their company.  For many HR professionals, it’s a “damned if I do and damned if I don’t” scenario.

The following article provides a nice description of how HR professionals can take the overall question of “Should I hire someone with a criminal record?”, break it down and come to a decision they are comfortable with.  But, as with any question regarding the type of information that can or should be used to deny employment, employers should consult with their legal department to ensure compliance with both state and federal law.

If job candidate has a criminal record, ask questions

By Victoria Stagg-Elliott, AMNews Staff – August 10, 2009

If you run a background check on a potential receptionist, and you learn he was convicted of marijuana possession many years ago, can you still hire him?

Or what about offering a job to an otherwise strong candidate who, in answer to the application question, “Have you ever been convicted of a crime?” writes, “Yes, drunken driving, six years ago.”

Can you employ them? Should you? What are the risks if you do? What are the risks if you don’t?

Considering hiring someone with a criminal background, no matter how minor, is tricky. On the one hand, anti-discrimination laws prevent you from instituting a ban on hiring anyone with a criminal record. On the other, you could open yourself up to a negligent hiring lawsuit if it is determined that you should have known someone was at increased risk of causing harm to patients or staff.

This question is becoming more important, because background checks are easier than ever, meaning that job applicants are more likely to have this type of information disclosed during the hiring process even if the conviction is far in the past.

Also, the percentage of people of the labor pool who answer “yes” to an application question about past convictions is growing. According to the U.S. Dept. of Justice’s Bureau of Justice Statistics, in 2007 more than 7.3 million people, or 3.2% of adults, were on probation, in jail or in prison. The agency estimates that if trends continue, approximately one in every 15 people will serve time at some point in their lives.

“A physician has to be so careful,” said Linda Stimmel, a founding partner in the Dallas-based law firm Stewart Stimmel. “But I would not have any kind of policy on the subject. I would handle every hire on a case-by-case basis.”

So what should you do? Experts recommend asking these questions:

What was the offense? This is key, because a direct link between the crime and the work environment are strong grounds for not hiring someone. That’s because an employer could be held liable for negligent hiring. Employing someone with a child molestation conviction in a pediatrician’s office would be a clear example.

Most situations are not quite so clear-cut, but other questions may clarify the decision.

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We found this one on the California Employment Attorney Blog early this morning.  The case does not define if the employer conducted a proper background check, it does however say they knew about the convictions.  The good news for the employer is they were found not liable.  The bad news for their management is they should look at their hiring practices and re-evaluate what types of crimes eliminate applicants from employment.

In Phillips v. TLC Plumbing, Inc., a California Court of Appeal addressed the issue of negligent hiring and retention. One of TLC’s employees had been convicted for domestic violence and arson involving his former wife. TLC learned this about the employee when it hired him. The employee struck up a relationship with a customer while on a service call to her house. TLC terminated the employee a month later for misuse of a company vehicle, drug and alcohol use, and threatening a coworker. The terminated employee and the woman, however, became romantically involved and continued their relationship after the employee’s termination. Approximately two years after his termination from TLC, the former employee shot and killed the woman. The woman’s family then sued TLC for negligent hiring and retention.

TLC argued that it did not owe any duty of care to the plaintiff, because the murder had occurred two years after TLC terminated the employee. The California Appellate Court agreed, finding that “[B]ecause the employer-employee relationship ends on termination of an employee’s employment, we conclude an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury or harm inflicted by a former employee on the plaintiff even though that former employee, as in this case, initially met the plaintiff while employed by the employer.”

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Is anyone sick of my rants about why it isn’t a good idea to use Social Networking sites when conducting background checks on your job candidates?  If you answered yes, you might not want to read this post.

A company called Yasani is now offering a free internet search tool which will allow employers to view a candidate’s online persona whether on Facebook, MySpace, LinkedIn and get this, online shopping wish lists! So let’s get this straight, if I’ve posted that I would like to buy a new flat screen TV, an employer can decide not to hire me?  Are you kidding me?

Here a couple reasons why employers could get into hot water using sites like these when making hiring decisions:

• There is no way to authenticate the information for accuracy
• Anyone can establish a profile in any one’s name and post whatever they like
• Photographs can be doctored
• Evaluating these site provides access to personal information such as religion, personal beliefs, sexual orientation, race, etc.
• How do you evaluate the information found consistently?

Do you really want to spend the time defending yourself for discrimination and negligent hiring practices?

If you are interested in learning more about this topic and other Technology Trends in Background Screening, please sign up for a free webinar I will be conducting for JobMachine on January 29th.

By the way, I have been told by numerous attorneys that using sites such as Facebook and MySpace for employment screening purposes violates the user agreement that users must agree to when signing up for these services.

Still think this is a good practice?

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If there ever was an example of what NOT to do, this would be it.

1.  Hire an illegal alien to work for your company

2.  Not conduct a background check (but really, how could you conduct a thorough check without a valid social security number – which you knew about!)

3.  Not accept responsibility for your actions (or lack thereof)

And let’s not forget the Club’s President actually placing blame on the victim for an earlier incident that occurred with her attacker that, in my opinion, was in no way any fault of hers. 

If I were a member of this club, I would be canceling my membership faster than you can say ‘negligent hiring lawsuit’.

Testimony: Lax checks led Everglades Club in Palm Beach to hire illegal worker who raped woman

By Michele Dargan, Palm Beach Daily News Staff Writer – December 20, 2008   

Depositions in a rape lawsuit against the Everglades Club have shed light on some of the veiled practices of the exclusive club.

The club has been sued by former employee Melissa Legare, who was attacked by an illegal, undocumented club employee.

Testimony by club President William Pannill reveals a secret, stringent vetting policy for prospective members that contrasts starkly with a loose hiring process that allowed dozens of illegal workers with forged green cards — some with criminal backgrounds — to work for the club.

One of those undocumented workers, Esdras Cardona, raped Legare in the pre-dawn hours of April 2, 2006, after breaking into her dormitory room at the club.

Legare, then 20, fought off Cardona, an undocumented immigrant from Guatemala, until he left the room and police were called.

Cardona, a dishwasher, was convicted of the rape the following year and is serving a 20-year sentence.

Legare’s attorney, Ted Babbitt of West Palm Beach, claims the club failed to supply adequate security, failed to support Legare after the crime and failed to properly check Cardona’s background.

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When it comes to safety, shortcuts can be detrimental.  The family and friends of those killed in the Colusa bus crash on Sunday know this to be true.  The driver of the bus, Quinton J. Watts, was found to be driving under the influence.  It has also been discovered that Watts had an extensive record involving criminal activity and multiple moving violations.  On top of that, he had no experience driving a bus.  Eight passengers were killed and at least 35 were injured in that fateful crash.  In this case, one background check could have saved eight lives, including that of the bus company’s owner, Daniel Cobb.

So next time you are evaluating your screening process (Is the money we are spending worth it? Is this something we really need to be doing?), think about this story.  I think the answer is evident.

Colusa Bus Crash Highlights Dangers of Negligent Hiring

David Rosenthal, Injuryboard.com – October 7, 2008

Daniel Cobb, the owner of the private bus that crashed Sunday was obviously desparate for a driver since he placed an online classified ad for the position on 10/2/08. He apparently was willing to forego a background check or to simply ignore Watts’ checkered past because he was Cobb’s stepson. It was a costly decision not only for the passengers and their families, but for Cobb himself, who died as a result of the collision. Cobb’s poor choice of a driver had diproportionately tragic consequences for families in Sacramento’s Lao and Hmong communities, whose parents and grandparents were his regular customers.

Many responsible common carriers have minimum training requirements and conduct stringent background checks. However, far too often we see the tragic consequences of employers who take short cuts in hiring the people who are entrusted with the safe transportation of our loved ones. Make sure that the common carrier you hire is not gambling on safety.

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employeescreenIQ will be exhibiting at next month’s American Society for Healthcare Human Resource Administration’s (ASHHRA) 44th Annual Conference and Exhibition October 11-13, 2008 at the Austin Convention Center in Austin, TX.

This is a must-attend for HR administrators in the healthcare field interested in career training and development.  It is also a great networking opportunity.

employeescreenIQ will educate attendees on best practices in employment background checks and provide suggestions for how healthcare organizations can get the most out of their background screening program.  We’ll highlight how and effective screening program can minimize risk, reduce the opportunity for negligent hiring, improve retention and most importantly, protect patients and co-workers alike.

Please stop by if you plan to attend.

employeescreenIQ announcement on ASHHRA Conference

List of other upcoming conferences

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