private or public record?

pattyo · June 2003

An employee accessed public records from the court system on-line. He found out about several employees with criminal records in their past. (10 years ago) I've called the inquiring employee in and talked to him about being discreet and not spreading this information around. If he talks to other employees about the information he found out, is the company open to a lawsuit?

Bizee1 · June 2003

Could be open to a defamation or slander complaint, for sure.
One question though: Did the ee's he snooped on sign a release or an acknowledgement that the company could/would be doing background checks? If not, and he went about this on his own-doing, I'd be doing a lot more than just counseling him on being discreet about the information he found out.

SMace · June 2003

Number of issues:
1. How did you find out?
2. I don't believe you can do anything adverse to the ee's without a signed background consent.
3. If there are violent crimes on record and you now know about it, you may be in a pickle. I would talk to attorney if that is the case.
4. I would strongly counsel that employee that he is opening himself up to potential PERSONAL lawsuits that would be expensive to defend by doing this. He is also exposing the company to potential problems by doing this. Tell him if he does anything like this in the future he will be disciplined up to and including...
5. I bet he is going to say that he was doing it for the benefit of the co. and ask you what you are doing to ensure his safety if he is the one telling you about criminals in your midst. Most likely he is a busybody that needs a life. Your going to decide on that one.

Don D · June 2003

>An employee accessed public records from the court system on-line. He
>found out about several employees with criminal records in their past.
> (10 years ago) I've called the inquiring employee in and talked to
>him about being discreet and not spreading this information around.
>If he talks to other employees about the information he found out, is
>the company open to a lawsuit?

You say 'an employee accessed public records'. I trust from that you are saying he did it on his own and not as required by the company. If that is the case, why are you even concerned that he did it?

You say the records accessed were 'public records from the court system on line'. If that is the case, how is the company involved or at risk? And if the information is from court records available on request to the general public, how in the world could your company be open to liability if the employee accessed it out of personal curiosity and adventure? And what would any of this, as others have suggested, have to do with someone giving you permission to do a background check on them?

If I have all of this wrong and the employee was doing this in the course of business for the Human Resources Department or, by extension, for the Company as a method of checking out people for employment purposes, I would only hope that your application contains statements about the company's right to conduct certain background checks and that it is signed off on by applicants. On the other hand, if the inquiring employee was doing this strictly for his own curiosity using websites he learned were available to the general public, and was not doing so in the interest of or at the direction of the employer/company, I would simply tell the 'inquiring mind', "It's your own ass if this creates a problem."

LindaS · June 2003

I have to agree with Don. Unless this employee was doing this as part of his/her job, I don't see any potential liability on the part of the company. Keep in mind these are PUBLIC records and ANYBODY can access them so what this employee did, on presumably his own time, is not something you should be held liable for as long as you don't use any of the information in making any employment decisions. I would, however, make sure the employee was made aware of the fact that he has some potential personal liability if he chooses to spread this information around but again, that is something between this employee and the person(s) he chooses to "gossip" about.

SMace · June 2003

I'm going to stick with my original post and disagree with Don and all of you. I did not say that the company would have any liability beacause the employee accessed the records. What I tried to say was if the poster found out, from the person that did the search, that there are employees with records of violent crimes there could be some liability if those employees are involved in workplace violence. The harmed person could say the company knew about their potential for violence.

Don D · June 2003

I didn't go so far as to use my imagination to lead to a conclusion that someone may have discovered the existence of a conviction for a violent crime. I didn't see that as the original question. I think that's an entirely different area of question, but I don't necessarily disagree with you on the theory of negligent retention.

sonny · June 2003

I'm with Don and Linda. . I didn't jump in earlier, cuz I thought I had missed something. I can go on line and with very little information find out if someone has a vald driver's license, what they paid for their house etc. If it's a public record, I don't understand how the company would even be involved.

LeeR · June 2003

Have to agree with Don. Public records mean just that. No release required.

SMace · June 2003

I disagree. My recommendation above was if she takes an adverse action against an ee because of knowledge of past criminal records she will need a release (or she will violate FCRA). When you pay someone to do a background check on someone, part of what they are checking is public records. They aren't getting some secret Watergate file. You are paying primarily for their legwork. My impression is it doesn't matter how you find out(public, private, Joe blow or the ICU Background Check Agency). If you take an adverse employment action because of "backgound info" you need a release.

Don D · June 2003

What the Consumer Credit Protection Act requires is that if adverse action is taken because of a consumer report, the individual must be provided a copy of the report upon which the adverse action was based. And also that in order to proceed with certain types of consumer report requests/inquiries, a signed release is required. It doesn't say you must also have a release in order to take adverse action. Nor are we required to have a signed release in order to stumble upon information that is determined to be accurate. If I hire Harry not knowing that he is a convicted felon and later am told by the FBI that he killed a man in Reno, just to watch him die,(my apologies to Johnny Cash) and my company decides to terminate Harry because of some perceived risk to us and the customers Harry works with, lack of a signed release is not going to impede that action. Nor should it.

SMace · June 2003

Okay, okay I agree with the signed consent issue. I have to admit I've been throwing carrots all day trying to get a good debate going. I am wrong in this instance however (first time for everything). After further research to the amendment of the FCRA that Don refers to applies only when using "consumer reporting agencies". This do-gooder would not fall in that category. I would still not be surprised if an attorney took a case like this because the ee was not informed of their rights (signed consent).

I still stand by my stance that there could be co. liability if any of the ee's have a violent criminal record and workplace violence ensues. Have a great day. I'm going to CA this weekend to play Pebble Beach, Spanish Bay and Spyglass. Even being wrong can't ruin that.

TALLEY · June 2003

I'm just wondering if the inquiring mind acquired info from personnel records (i.e., SSN, DOB, past/present address) to assist his search?

Don D · June 2003

Good Question. In our state, there's a website that lists all sex offenders and shows their photo, nature of crime, sentence, release date, address, description, vehicle and county where they reside. Very informative. I always like to check to see if a neighbor is on this website. No particular neighbor, any of them.

pattyo · June 2003

Wow, this has all been very informative. The "inquiring mind" only needed a first and last name (assuming the birthdate was correct) to acquire the criminal record. It wasn't violent. We don't ordinarily do criminal background checks but now our company president wants to start so I'll need a consent form to do this. The information that was going around was incorrect. The inquiring mind misread and misunderstood the record and so started gossip which was incorrect. I am concerned because he used a company computer, I don't really believe he was on his own time, and the information he spread was incorrect. The problem of him doing this was addressed with him but I couldn't really do anything more as he is the friend of the company president's son. He's not going to go away. I was hoping to come up with information that would give me some leverage in pursuing a more severe consequence than a good talking to. Thanks everyone. Anyone have a consent form that they use?

Celi · June 2003

I am with a credit reporting agency that provides access to public record checks. We provide our customers with a sample consent form. If you would like a copy of this form, please send your email address to [email]marketing@choicedata.com[/email].

System · June 2003

I agree! It was public information. It is the same thing as reading about it in the paper. LZ

Margaret Morford · June 2003

I want to add one more twist to this thread. If the employee snooping around is a supervisor or manager, he/she may be considered an agent of the company with implied authority, creating some liability for the company. If he/she is a member of management, you need to be on record that this behavior was not consented to or condoned by your organization. The individual should be instructed that if he/she suspects that an employee has violent tendencies or a past record of violence, this information should be brought to a company representative to handle investigating.

You might also share with your employee (that did the snooping) that while truth is a defense in a defamation lawsuit, he/she may be on the hook for an invasion of privacy suit and/or a false light suit regardless of the fact that what he passed on was true or a part of public records.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

private or public record?

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