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BACKGROUND CHECKS- WHY THEY CAN SAVE YOUR ORGANIZATION 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 entities. 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 actions 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 careerbuilder.com have caught candidates lying on their resumes. Most common resume lies (source: Forbes.com, 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 uncovered. 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 class. 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 implicated. 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. Conclusion 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. Questions?? Thank you!!
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