Gordon Law

Make sure you are covering your backside while conducting your background checks

hr matters

The economy is improving which means, hopefully, your business is growing. We have written before on hiring issues (please see https://gordonlawlv.com/time-hire-new-employees-protect-business-growing/ ), but given the employment climate after the explosion of the #metoo movement and the Kavanaugh hearings, we wanted to discuss background checks. In doing a background check there are several things you should know.

If you don’t do it right, you could get sued

  • You cannot use a background check to discriminate based upon race, color, national origin, sex, religion, disability, genetic information. Therefore, if you conduct background checks on some candidates but not all, you can incur liability.
  • Background checks, even those for which you hire a third-party vendor, can lead to liability if you don’t comply with federal laws such as the Fair Credit Reporting Act.
  • If you are hiring outside of Nevada, be aware of state laws like “Ban the Box” or other laws that prohibit or limit criminal record screening policies. In this regard, even the EEOC has advised “employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race…” For more, please see (https://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm).
  • If you do not properly maintain your records, including application forms regardless of whether someone was hired, you can be sued or fined by the federal government.

Even if you do it right, you could get sued

  • As we have seen with the #metoo publicity, when there have been previous illegal acts conducted by certain employees, the complaining employees have been compelled to sign a non-disclosure agreement in connection with a settlement. Accordingly, a new employer may never know that the employee engaged in harassment. However, if the employee harasses other employees on your watch, you may still have liability.
  • I have been, along with a huge swath of the country, watching the allegations concerning Brett Kavanaugh unfold. Regardless of your opinions on this issue, the allegations would have never surfaced in a background check because there was no criminal complaint ever filed.
  • Former employers will, rightfully, fail to give you background information about your candidate aside from the dates of employment. If there was a problem that would not be discovered on a background report, you may end up hiring someone who will damage your business.

So, what should you do?

  • Make sure you hire a third-party vendor who gives assurances that it is compliant with all federal and state laws and indemnifies you for any claims.
  • Have a comprehensive employee handbook, which you enforce, that sets forth the legal policies and practices of your company. For more on this, please read here (https://gordonlawlv.com/manual-employee-manual/).
  • Train and educate your staff on a regular basis.
  • Maintain comprehensive documentation of your actions and those of your employees.
  • Consider obtaining employer liability insurance.

Contact Gordon Law to give you personal advice

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