Backgroud Check Issues

Rob S

We employee a service to do our background checks. They look at past addresses, convictions, employers not listed on the application, and they ask employment question from employers listed.

Our employment application has the question "may we contact your current employer". It sounds like our service has missed this and contacted a current employer that the applicant had requested that we not contact, and the applicant is worried that they will loose their job over this. The background search form (other than our application) used by our search company (FCRA compliant) does say that the employee authorizes this company to contact current and previous employers, and the applicant did sign this form.

I feel very bad about this, and have contacted our search company about changing their form for us so that the employee can let it be known on this form too not to contact the current employer. I also let them know we want them to take steps that this will not happen again.

It looks like we are going to hire this person, so hopefully this will be a non-issue, but I still am curious about what our liabilities are on this.

There are several of us in the office who disagree about what could happen to us if we do not hire this person. I personally think that legally we are in the clear, but another person thinks we could get sued over this.

What do all of you think?

Rob

Don D

Although you can be sued for anything, I see no real liability here, even if you violated the confidence yourself. Stuff happens. When companies do background checks, the good ones do not indicate the real purpose of the inquiries. They could be a credit agency for that matter. The cover form we use to send an app to our background check company clearly tells them whether or not to verify current employment. You might revise this piece.








Note: The preceeding is my personal opinion and has no value beyond that. Although it may be 'sorta offensive' or 'indeed offensive' to someone out there, it is offered without regard to that possibility. Should you find yourself alarmed by my post, you may privately mail me to protest or you may alert the principal's office. x:-)

Rockie

Legally, you appear to be in the clear since the applicant signed off giving permission to contact the current employer.

In my experience with background check companies, it is not a common practice to contact where the candidate is currently working. There are still those out there who might take issue with an employee seeking a new position and fire them. A few applicants will tell you up front it's okay to contact the present employer as they are aware they are seeking another job. Most companies are unaware their employees may be looking elsewhere.

marc

If you did not hire the person and they suffered some damage, such as a lost job or were denied promotions and raises, and then failed to effectively mitigate the damages (did not get immediately rehired); then you can see possibilities for a lawsuit. There is a lawyer out there for everybody and you can see where one of them might want to take this type of case on.

I suppose it would come down to dueling releases, one saying do not talk to the current ER and the other saying it is OK to do so. Pretty clear that the intent of the applicant was to protect his current job so if these were the only facts, and I was on the jury, I might lean toward some sort of award.

Of course, you don't know why the applicant is looking, he could be on the way out due to poor performance, bad fit, or ? which would surely impact any judgement.

Then, of course, you have to pay your own lawyers so even if you win, it still cost you some bucks.

All of that said, I am just a layman and have been accurately accused of being a bit paranoid when it comes to liability assessment. But just because I am paranoid does not mean they are not out to get me.x;-)