Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Background Checks: The New Burden of Proof

By Tal Moise and Steven T. Sledzik
September 27, 2006

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.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

The Benefits of Blockchain for e-Discovery and Data Preservation Image

As businesses across various industries increasingly adopt blockchain, it will become a critical source of discoverable electronically stored information. The potential benefits of blockchain for e-discovery and data preservation are substantial, making it an area of growing interest and importance.