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Background Checks: The New Burden of Proof
Negligent hiring cases typically turn on whether a background check that was forgone would have helped to reveal an employee's propensity to erupt in violence or commit fraud. But a new burden of proof may be on the horizon.
In 2005, a lawsuit was filed that alleges that Federal Express (FedEx) failed to ferret out a sex offender who molested a boy he met at work. FedEx claims his criminal record was clean. The boy's attorney, Neal Rogan, said: 'That person is either lying or Federal Express is wildly incompetent in how they do background checks.'
The FedEx case originating in Connecticut, Doe et al v. Federal Express Corporation et al, is likely to be the first that focuses on how, not if, criminal records are searched. If so, conducting a cursory scan in order to keep costs down and then claiming compliance will be riskier than ever. In addition, not understanding the nuances of the backend processes of background checks can leave employers in the dark and lead to expensive litigation. For instance, relying on state registries created under Megan's Law to screen employees and contractors for sexual offenses prior to hire is like expecting 100% of candidates to come clean on their job application. Under current laws, sex offenders are required to notify the chief of police, sheriff or campus police when relocating. But, not surprisingly, non-compliance is high ' in some states, studies have shown that up to 40% of sex offenders are missing. Compounding the problem, states differ in how they define sex crimes. As a result, non-compliant sex offenders can crisscross the country underneath the radar screen while States operate in silos without sharing information and responsibility.
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