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How to conduct security checks on prospective employees.

Minimizing on-site criminal activity begins with the hiring process. Here's a guide to conducting effective -- and legal -- background checks

An employer who wishes to screen applicants through the use of background checks, specifically criminal background checks, is well within its rights to do so, as long as certain "safe harbors" are observed in the process. In this article, we will focus on the reasons why such background checks are important legal, as well as practical, tools, and on observing the safe harbors in question.

The Employment Environment

Health care employers have a duty to provide a safe environment for their residents. Health care facilities, being service-intensive, have a large number of employees, many of whom are at the lower end of the salary scale. In effect, health care facilities provide a setting where society's lowest paid employees are caring for society's most fragile members. That setting, without careful screening, can give rise to incidents of theft, abuse and the like. A primary purpose of the screening process is to minimize those incidents.

Health care employers also have a duty to provide a safe workplace environment for their employees. A second primary purpose of the screening process is to minimize the potential for inter-employee disputes. The screening process should help reduce the risk of drugs, fights and injuries on the job and the associated costs and liabilities that follow.

In addition to protecting the safety of residents and staff, an employee screening process can produce the following benefits:

1. Higher employee job satisfaction 2. Lower employee turnover 3. Better employer/employee relations

The Perils Of Negligent Hiring

Employers are often in a dilemma when it comes to the hiring of applicants. On the one hand, courts have concluded that if information regarding an employee's instability or unsuitability for a position exists prior to hiring, it is the responsibility of the employer to seek out and act upon that information. On the other hand, an employer's ability to obtain information about applicants is often hindered by a former employer's hesitancy to provide negative information out of fear of being sued for defamation or libel by the applicant in question.

Lawsuits involving negligent hiring typically focus on the employer's hiring process, paying particular attention to whether the employer conducted sufficient inquiry regarding the background and references of the employee before the employee was hired.

In the case of Ponticas v.K.M.S. Instruments, 331 N.W. 2nd 907 (Minn. 1983), a tenant was raped by the manager of an apartment complex. The tenant brought suit against the owner of the complex alleging that the owner was negligent in hiring the manager. The manager had a criminal history, including burglary and armed robbery. In his most recent job, the manager had been fired as a bus driver for drinking on the job and for fighting with his supervisor.

In the hiring process, the manager revealed that he had been convicted of a crime, but he described the crime as "traffic tickets." The owner did not inquire further. At trial, the manager testified that if he had been required to sign an authorization releasing his criminal record, he would have refused and not sought the job.

The court stated the owner's exposure as follows:

"Liability is predicated on the negligence of an employer in placing a person with known propensities or propensities which should have been discovered by reasonable investigation, in an employment situation in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others."

The court stated that the "scope of the investigation is directly related to the severity of risk third parties are subjected to..." Where the applicant will be dealing with vulnerable persons (such as in a health care setting), the burden on the employer rises accordingly.

The court concluded that the owner had breached its duty, in light of the facts and circumstances of the case, and found that the owner was liable to the tenant for damages.

The Ponticas case confirms the liability of an employer who knew or should have known of the employee's negative activities.

The imposition of liability on an employer has been widely supported throughout the United States. The implication of those holdings is that an employer has a positive obligation, especially in a health care or senior housing setting, to investigate the background of a prospective employee as thoroughly as possible.

References Vs. Defamation

As already noted, one reason that information about an applicant is hard to come by is that many employers have adopted a neutral policy on references: they will reveal only name, job, title and dates of employment. To do otherwise, it is feared, is to expose the employer to risk if the applicant is defamed in the process. In Minnesota and other jurisdictions, courts have given employers limited protection when making statements about a former employee's termination--even if the statements turn out not to be true. An employer may be held liable in defamation only where there was a clear abuse of the privilege, such as where the employer lied about the real reason for termination.

The policy to reveal no negative information about a former employee may seem to be the safest, but it is not always the best. If the employer knew or should have known about a former employee's negative propensities but does not reveal that information to a prospective employer, the former employer may be found to be liable under the doctrine of "negligent referral."

The Screening Process

An effective, legally well-grounded screening process can be outlined as follows:


1. Contact all previous employers.

2. Attempt to verify trustworthiness, honesty and freedom from any violent, criminal or improper propensities through references and previous employer.

3. Inquire regarding gaps in employment.

4. Establish that applicant holds any necessary licenses, certifications or registrations.

5.Check relevant background. For example, an employer must check the driving record of an employee hired to be a driver.


It is not a primary purpose of this paper to delve into the "do's" and "don'ts" of drug testing. Employers should know, however, that the recently enacted Americans With Disabilities Act does not protect illegal drug users, and an employer may deny employment to or fire anyone who is currently using illegal drugs. An employer may test applicants for current illegal drug use and make hiring decisions accordingly.


Most states permit employers to obtain information relating to felony convictions. The information obtained can be used in the hiring decision. However, a prior conviction may not be an absolute bar to employment. An employer must establish a connection between the nature of the crime for which the applicant has been convicted and the requirements of the position.

This connection is often referred to as the Business Necessity Rule. In effect, the Business Necessity Rule requires employers to consider all job-related circumstances surrounding a conviction in determining whether or not the employment of the applicant would be inconsistent with the safe operation of the employer's business. Those circumstances include:

1. time of conviction 2. nature of conviction 3. number of convictions 4. facts of each case 5. job-relatedness 6. length of time between conviction and application 7. efforts at rehabilitation

The tests are relevant not because a conviction record is a "protected status" but because appropriate state or federal law may intervene otherwise. Various states have statutes which limit the scope of inquiry (type of offense; age of offense; etc.) or which require the employer to first advise the applicant of the intended inquiry. Under federal law an inquiry may be unlawful if the information obtained is utilized as a hiring criterion and it has an adverse, or disparate, impact on a protected class.

This concept of disparate impact arises when an employer utilizes conviction records as a pretext for discrimination against a group, e.g. Afro-Americans, who might have a disproportionately high conviction rates and, through the use of same, could be disproportionately disqualified from employment.

The Employment Process

The steps involved in this would include:


The application is a selection instrument designed to find the best qualified persons for the available jobs. A well-written application form should strike a balance between the employer's desire to screen out undesirable applicants and the employer's wish to minimize claims of discrimination.

The form should contain the following:

1. A statement of non-discrimination, including a declaration of employer policy complying with the law.

2. A statement that falsification of information on the application may be grounds for discharge. An applicant's failure to disclose information regarding a past conviction is grounds for discharge even if there is no connection between the conviction and the job requirements. An employer is entitled to obtain all necessary information to make a hiring decision.

3. A statement that employment with the employer is "at-will."

4. An authorization by the applicant for certain background checks, such as records pertaining to criminal convictions. Without a signed authorization, an employer faces the potential for a claim of invasion of privacy by the applicant.

5. An inquiry regarding previous convictions, with the notation that a record of a conviction will not automatically disqualify the applicant.

6. A notification that any offer of employment is conditioned upon certain specified events, such as the completion of a criminal background check.


Employers should carefully monitor their hiring practices to make sure that the application and screening process does not have a disparate affect on protected minorities. Personnel records must be maintained for at least one year under appropriate federal statutes.

There are legal implications for other common hiring techniques, as well -- for example, so-called honesty tests.

After the 1988 enactment of the Employee Polygraph Protection Act (which prohibited in most instances the use of pre-employment polygraph examinations), many employers turned to 'honesty' or 'integrity' testing. These tests deal with attitudes toward such topics as thefts and other forms of dishonesty. Honesty tests are controversial and future litigation regarding their use is likely. At the same time, they can be a useful tool in screening applicants.


Criminal background checks of potential employees comprise an effective part of the employment process and can produce positive benefits to the employer. In instituting a criminal background check procedure, the following safe harbors should be observed:

A. Convictions can have a bearing on the employment decision only if there is a direct relationship between the conviction record and the requirements of the job in question.

B. A positive response to an inquiry about a conviction record should not be an absolute bar to employment.

C. The employment application should contain an authorization to inquire into the applicant's criminal conviction history.

As a general rule, it is less expensive to do thorough background checks of a job applicant than it is to terminate an employee or to defend a negligent hiring case. As such, background checks should be made an integral part of the hiring process.

David A. Grant is Vice-President, Senior Corporate Counsel, and Jack Kemme is Vice-President, Human Resources, Walker Methodist, Inc., Minneapolis, MN.

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Title Annotation:nursing homes
Author:Kemme, Jack
Publication:Nursing Homes
Date:Mar 1, 1993
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