CRIMINAL
BACKGROUND
CHECKS:
You need to do them, but you can pay a lot if you
don’t comply with the legal requirements
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2015 Issue 1 GearedUp
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32
hat do you really know about the applicant sitting
before you? You can bet that she’s doing her best to
land the job, but is she all that she seems or is she
the one employee who ends up costing you tens of
thousands of dollars in losses and attorney’s fees?
As an employer, you have an obligation to provide
a safe workplace, including one that is free from harassment or
violent actors. As a business owner, you have a need to protect
yourself from fraudsters and thieves, as well as from others who
might harm the business. While nothing is fool proof, a critical
tool in meeting these obligations is conducting thorough and
lawful background screens. In fact, failure to comply with the
various laws on conducting background screens can be almost as
costly as not having done them at all; however, there is no question that you really should vet the candidate sitting before you.
Unfortunately, if you do not dot every“i”or cross every“t,”you
can get hit with a big damages award, even if you were trying to
do the right thing. In fact, the U.S. Supreme Court issued a decision in 2007 that made punitive damages available if an employer
should have known it was not acting in compliance with the Fair
Credit Reporting Act (FCRA), which I discuss below, even if there
was no showing of actual harm. Plaintiffs’ attorneys are becoming
more aware of the FCRA and its potential rewards, and more
FCRA claims are being brought. In fact, household name companies such as Pizza Hut and Uber are facing class actions filed
just this year and Publix Supermarkets agreed in December 2014
to pay $6.8 million for failing to comply with the requirements
for obtaining consent for background screens in a stand-alone
document.
It Begins with the Application
The first step in conducting a background screen is having an up ]Y