Background Checks by fanzhongqing


 Presented at the
 Colorado Public Risk Managers Association Meeting
 February 19, 2009

 By Stacey Aurzada
 Assistant City Attorney, City of Greeley
Basics of Background Check

    What is a background check?
      References
      Criminal history

      Driving history

      Drug tests

      Credit report

      Medical examination

    Applies to employees and volunteers.
Why conduct background checks?

   Once you conduct a background check,
   you may have to act on the information
   you received, so why bother?
Why conduct background checks?

 1. To safeguard the public.

 2. To avoid litigation and liability.

 3. To minimize risks to other employees in
    the workplace.

 4. To make sure you are hiring the best person
    for the job.
                  EXTRA! EXTRA! READ ALL ABOUT IT!

                               Assistant coach arrested in
                               marijuana bust
                               --Greeley Tribune; Dec. 11, 2008

Rec center worker pleads
guilty to sex assault
--Denver Post; Jan. 28, 2008
Avoid Litigation and Liability

     Colorado has recognized the tort of
      Negligent Hiring.
       Connes v. Molalla Transport System, Inc.,
        831 P.2d 1316 (1992).
       “Knew or should have known.”

     Degree of contact with the public.
Avoid Litigation and Liability

     Governmental Immunity
         Protection from state law tort liability for public
              No waiver of immunity based solely on failure to conduct
               background check.
              Failure to conduct background check could be a factor in
               actions where immunity has been waived.
                    i.e. motor vehicle accidents.
         Governmental immunity does not protect federal
              Though Plaintiff can not proceed in a § 1983 action on the
               basis of Respondeat Superior, they can proceed on a
               policy and custom theory.
Minimize Risks

    Workplace Violence
        In 2006 assaults and violent acts constituted 14% of all
         workplace fatalities.
        The Workplace Violence Research Institute estimates that
         business owners nationwide lose $36 billion annually from the
         effects of workplace violence.
    Workplace Violence could lead to legal liabilities.
        OSHA states employers have a legal obligation to provide
         their employees with a place of employment that is “free from
         recognized hazards that are causing or are likely to cause
         death or serious physical harm to employees.”
        Hostile Work Environment claims can be made due to severe
         or ongoing workplace violence issues.
Hire the best person for the job

     49% of hiring managers surveyed by have caught candidates lying on
      their resumes.
     Most common resume lies (source:, 05/23/2006) :
         Dates of employment;
         Academic degrees;
         Graduation dates;
         Performance numbers;
         Salary;
         Job titles;
         Technical abilities;
         Language fluency;
         Grade point averages.
Social Networking Sites

    MySpace
        1 billion page views per day
        100 million registered users.
    Facebook
        54 billion page views per month
        47 million registered users.
    85% of students at participating universities have a
     profile registered on Facebook, and 60% of those
     students log in to their profiles daily.
    Over 77% of employers uncover information about
     candidates online, and 35% have eliminated
     candidates based on information they have
How to avoid the Pitfalls

     Background checks are legal

     The manner in which information
      obtained in a background check is used
      could lead to liability.
How to avoid the Pitfalls

     Discrimination
         Background check may reveal information about a
          protected class.
              Race, sex, religion, ethnicity, age, etc.
         Employee may allege that background check has a
          discriminatory “disparate impact” on a protected
              Employers should conduct background checks that are job
               related for the position in question and consistent with
               business necessity.
              Treat all candidates for a position the same.
         Criminal history is not a protected class.
              Discrimination may exist when a protected class is
How to avoid the Pitfalls

     Americans with Disabilities Act
         Background checks may uncover information about
          a disability.
              Past Drug or Alcohol Use
              Mental Health or Psychiatric conditions
              Other medical conditions
         Cannot base hiring decision on the fact that an
          individual has a disability.
         Cannot ask the individual about the disability.
              Can ask whether or not the person can perform the
               essential functions of the position with or without a
               reasonable accommodation.
How to avoid the Pitfalls

     Fair Credit Reporting Act (FCRA) and Colorado
      Consumer Credit Reporting Act (CCCRA)
         Applies to credit reports and background checks used for
          employment purposes.
         Requires the employer to get the individual's written consent.
              Requires clear and accurate notification.
         Applicants must also be given notice if a credit report will be
          used in making an unfavorable hiring decision.
              Applicant must also get a copy of their report and a statement of
               their rights.
         CCCRA limits information to last 7 years, unless the salary
          will be $75,000 or more.

     Cannot base your decision not to hire an applicant
      solely on the fact that he/she had a bankruptcy.
    Use background checks to investigate
     applicants and volunteers.
        Especially those who will be working closely with
         the public.
    Be cautious about how you use information
     obtained in a background check.
        Rely on multiple factors and information sources to
         make decisions.
    Be aware of laws governing use of
     background checks.

Thank you!!

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