Domino’s Pizza is the latest employer to find themselves in court facing a class action law suit alleging that their background check process violates the Fair Credit Reporting Act (FCRA).

The former employees claim that the company (1) ran background checks on employees without proper authorization; and (2) “systematically” failed to provide employees with copies of their background checks prior to taking adverse employment action against them.

This should not be news to employers. It’s Background Checks 101. So it is not surprising that last week, a Maryland US District Court judge allowed the case to move forward, denying Dominos motion to dismiss. In a long and critical opinion, the Court ruled that the plaintiffs properly alleged that Domino’s violations were “willful.” That means that the claims are putitive and if the Plaintiffs are successful, Domino’s pays an addtitional statutory penalty of $1000 per plaintiff. Ouch.

Sound familiar? It should. The Plaintiffs’ counsel– Minnesota firm Nicols Kastor, PLLP, filed a similar suit in December of last year against banking giant Capitol One. We told you about that case a few weeks ago. Plaintiff Kevin Smith accuses Capital One of violating the FCRA by combining it’s authorization with the company’s standard application. On this claim, Capital One may be liable to all employees and prospective employees who signed Capital One’s standard job application. Double ouch. The lawsuit also alleges that Capital One failed to provide copies of the reports when it used them to take adverse employment actions. Same story, different day.

Employers, these law suits are not going away. Review your adverse action process, and check your forms. If you need a compliant authorization form, you can get one from us.

An Illinois man is suing both his former employer and their background screening provider because they errantly reported that he was a registered sex offender and didn’t take the time to ensure that the record found actually belonged to him.

Stories like this really get my blood boiling because they make us all look bad.  The perception is that all employment screeners don’t care whether they report accurate information or not and that employers blindly make hiring decisions without allowing the candidate to refute the information.  It is also stories like these that cause government agencies and advocates to scream that employers are misusing background checks and that the practice requires further regulation and guidelines.

Here’s the story according to ABC News:

“In October 2010, [Samuel] Jackson was offered a job as a live chat response specialist for Optics Planet, an Illionois-based online catalog for binoculars, camera lenses and other optical equipment. The company then contracted Infotrack to run a background track, and Infotrack returned information tying Jackson to seven ‘possible matches’ from the national sex offender registry, according to the suit.”

“The background check misidentified Jackson, who is a white male in his twenties, as a black male in his fifties who had been convicted of sex crimes in states where Jackson has never lived.”

We’ve talked for years about the importance of confirming and verifying the information that is found before reporting it to an employer.  The Fair Credit Reporting Act requires Consumer Reporting Agencies to follow reasonable procedures to assure accuracy and to notify individuals when a report may adversely affect their job application.

In EmployeeScreenIQ’s case, we won’t report a record without confirming the proper identifiers.  We look for a combination of the following matches name, date of birth and, or social security number.  That means a name match only is not sufficient to authenticate a criminal record.

Furthermore, we work with our clients to ensure that they provide the candidates’ with proper notice when they take adverse action and allow them to dispute any information they believe is erroneous.

In this case, it seems that neither of these things happened.  And rather than face the negative publicity, the expense of litigation and potential damages, it would have been a heck of a lot easier to just follow the proper protocol.

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We are closely following a proposed bill in the state of Florida which would remove certain protections the state’s employers currently receive against negligent hiring suits in the event that they conduct an employment background check.

Florida House Bill 449 “Jim King Keep Florida Working Act” would remove a provision in Fla. Stat. § 768.096 (Employer presumption against negligent hiring) which was enacted as part of the 1999 Florida Tort Reform Act.

According to one legal expert I have spoken with, “The statute provides that in a civil action for death or injury caused by an employee’s intentional tort, the employer is presumed not to be negligent in hiring the employee if he engaged in one or more pre-employment background investigation steps that did not ‘reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general.’”

The state’s website introduces this bill as follows:

“Criminal Justice; Designates act “Jim King Keep Florida Working Act”; requires state agencies & regulatory boards to identify & evaluate restrictions on licensing & employment for ex-offenders; prohibits state agencies from denying certain applications based on person’s lack of civil rights; provides exception; requires employer to review results of criminal background investigation & not place employee with criminal record where conduct similar to past criminal conduct would be facilitated, etc.”

This bill should be of significant concern to employers in the state of Florida.  It basically means that even if you performed a comprehensive background check which did not indicate any adverse information, you can still be held accountable for negligent hiring.  Does that make any sense?  I suppose state lawmakers would prefer that employers look into a crystal ball to predict the future.

Read full version of Florida HB 449

Joseph Mannino, a registered nurse who previously served three years in a North Carolina prison on an involuntary manslaughter conviction, was fired from his job at Lehigh Valley Hospital in 2008 for lying about his conviction status on his application for employment.  Time employed before the hospital found out: about three years.

Why did three years go by before his lie was discovered?  I have a better question.  Why didn’t the hospital learn of his conviction when they conducted the background check on him?  Better yet, how was he able to get a nursing license in the state of Pennsylvania?

If you guessed that both his nursing school and employer only conducted statewide criminal checks through the Pennsylvania State Police, you are spot on!

While the PA State Police criminal check may be a good tool to finding records in the state of Pennsylvania (but only as a supplement to a comprehensive countywide criminal search -remember!), it is definitely not a good source for any records maintained beyond its borders.  His school and employer make the argument that he met the two year residency requirement so that is why the statewide search was conducted.  In no way is that a legitimate excuse for not knowing about the conviction!  Convicted felons should not get a pass just because they meet some arbitrary residency requirement.  This is a person who was employed to care for vulnerable people, had access to controlled substances and sensitive personal  information.  The bottom line is that his employer should have been aware of his criminal past prior to making the hiring decision.  Conducting a thorough criminal search in all of the places your applicant has lived and worked (as far back as you can go) is the best way to find out who you are really employing.

Convicted Killer Hired As Nurse

By Bo Koltnow, WFMZ-TV – March 15, 2010

SALISBURY TWP., Pa. — A convicted killer landed a nursing job and years went by before he was outed.  

By all accounts, Joseph Mannino of Palmer Township, Northampton County was a good employee when he worked as a nurse for Lehigh Valley Hospital.

But in 2008, he had his nursing license revoked and was fired for lying on his job application.  

The lie? Not being a convicted felon.  

Lehigh Valley Hospital said it never would have hired Mannino in 2005 if it knew then what it knows now. 

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An audit conducted by New South Wales’ Auditor General has found that fourteen people employed as volunteers for children’s organizations had dangerous criminal pasts that posed a significant risk to children.   According to the Auditor General, the Children’s Commission, the organization that oversees the health and well-being of children in New South Wales, can only stop the employment of volunteers if they are found to have serious child-related offenses in their past.

Now, correct me if I’m wrong, but I would consider many different crimes unrelated to children to be a basis to deny employment to someone looking to work with children. 

1.  Murder

2.  Assault (with or without a weapon)

3. Drug Related Offenses or Use

4.  DUI (if the position requires transporting children)

5.  Sexually related offenses (against adults)

I could go on but I think you catch my drift.  NSW and the Children’s Commission better get on the ball and plug these holes in their background check process before somebody gets hurt.

Background checks leave kids vulnerable

At least 14 people known to pose a significant risk to children were employed to work with young people in New South Wales last financial year, the state’s Auditor-General has found.

ABC News Australia – February 24, 2010

An audit by Peter Achterstraat has found the process used to check people who work with children in NSW does not reliably identify everyone who poses a danger to young people.

The audit has also found that people who have been assessed as being a significant risk to children can be employed to work with them.

Releasing the findings this morning, Mr Achterstraat said there were 14 such cases last financial year.

He said the Children’s Commission could only stop people identified as being dangerous from working with children if they had been convicted of a serious child-related offence.

Mr Achterstraat said it was also not known how many volunteer organisation were running Working With Children safety checks.

“Whether we like it or not, there is a danger that perpetrators of child abuse will deliberately target voluntary associations to get access to children…” he said.

“Parents expect that people working with their children would have been checked. There is a safety net but it has got holes in it and those holes need to be mended quick smart.”

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In what can only be deemed as a blunder of catastrophic proportions, the Charlotte-Mecklenburg Police Department hired a police officer with a history of domestic violence in which a restraining order was issued against him.  Somehow, the background check conducted on this individual missed this record – a record that also prohibited him from owning or carrying a firearm during the time the restraining order was in effect.    This officer now stands accused of sexually assaulting five women while on duty.

With the resources available to them, there is no excuse for the CMPD not to have known about this person’s history.  An editorial that appeared in the Charlotte Observer really hits the mark describing the ramifications of not completing a comprehensive background check on this person:

“If he’s guilty of the charges against him, his hiring brought physical and emotional harm to at least three women and put untold others at risk. It has jeopardized criminal cases Jackson worked on and damaged the hard-earned trust police need from citizens to help keep communities safe.

This is a folly that must not be repeated. CMPD must fix any personnel problems or practices that allowed it to happen, and those responsible for the botched background check must be held accountable.”

Looks like CMPD has some work to do. ..not to mention quite a mess to clean up.

A civil lawsuit brought about by the parents of Michelle Herndon, a University of Florida student found murdered in her home in November of 2005, alleged that her killer’s former employer was in part responsible for her death.  Her killer, Oliver Travis O’Quinn, was employed by Shands Teaching Hospital and Clinics, Inc. as a surgical nurse at the time of Herndon’s death.  Michelle Herndon died of an overdose of Propofol, Midazolam and Estomidate, anaesthetics available only by prescription that were stolen from the hospital by O’Quinn.  O’Quinn was convicted in 2008 of administering the lethal dose.

A Florida Appellate Court found that Herndon’s death “was a forseeable consequence” because the hospital “fail[ed] to use reasonable care in the hiring and supervision of O’Quinn.”  In its decision, the Court stated that the hospital “knew or should have known of [O'Quinn's criminal history] had it done a competent background check of O’Quinn.”  A background check would have revealed that O’Quinn’s criminal history included theft of controlled substances.

Had the hospital done its due diligence and conducted a comprehensive background check when hiring O’Quinn, perhaps this tragedy could have been avoided. 

Court Decision: HERNDON v. SHANDS TEACHING HOSPITAL AND CLINICS, INC

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.

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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Just two short days ago, I blogged about Gariner Beasley, a convicted rapist who was hired and continually promoted at an L.A. county hospital.  To reiterate, the county had run multiple background checks during his employment and Beasley had admitted to the conviction on his application.  In other words, the county KNEW about his past yet continued to let him work in a position where he was alone and unsupervised with vulnerable patients.  After an inquiry into the criminal histories of county hospital employees, Beasley was fired in August from his position as a X-ray technologist.  The county admitted that they had erred repeatedly in allowing him to be hired and remain on the job.  In Beasley’s termination letter, Christopher Arevalo, the hospital’s interim chief executive, said Beasley’s criminal convictions were “incompatible” with a job that left him alone with patients in “very vulnerable and compromised positions.”

Are you ready for this?

Against all odds, reason, and the scope of my understanding, the county REHIRED Gariner Beasley a short time after he was fired in August.  They fired him again on Tuesday.  Talk about shooting yourself in the foot – twice.

But this isn’t all bad news for Beasley.  I’m sure he’ll be back on the job in no time.  I hear L.A. county is hiring…

L.A. County rehired convicted rapist after firing him

By Garrett Theolf, Los Angeles Times – February 5, 2009

A convicted rapist fired in August from his job as a county hospital X-ray technologist was rehired by county managers through a contractor a short time later to do the same work at an East Los Angeles health clinic, officials acknowledged Wednesday.

Gariner Beasley, 48, was fired again Tuesday and escorted from the Edward R. Roybal Comprehensive Health Center, said county Supervisor Gloria Molina.

County officials struggled Wednesday to explain how they had rehired a man they fired in August, calling his criminal record incompatible with a job that required he work alone with patients in “very vulnerable and compromised positions.”

“There will be some heads rolling on this one,” said Molina, whose district includes the clinic where Beasley was working. “This is totally shocking. It really shocks all of your sensibilities because we are supposed to be serving and protecting the patients of Los Angeles County.”

The fact that Beasley reappeared in county scrubs after county officials dismissed him raises even more questions about the county health department’s vetting of hires and casts new doubt on the ability of the Board of Supervisors to reform the long-troubled Department of Health Services.

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