How to Avoid A Million Dollar Hiring Mistake

By Paul Marcus

In recent years, the number of negligent hiring lawsuits filed against employers has increased.  These lawsuits are normally filed by a third party who is injured by your employee.  Most claims are made charging that the company (you) did not do the proper due diligence of conducting a thorough background check before hiring the employee, and if a proper search had been done, the employee would not have been hired.

By not performing a complete and comprehensive background check, you are leaving yourself and your business open to the following:

• Unsafe business environment
• Embezzlement and dishonesty
• High employee turnover rate
• Workplace violence
• Negligent hiring lawsuits

The average cost to employers of a negligent hiring lawsuit is $1 million and can exceed $40 million.  In addition, 79 percent of negligent hiring lawsuits are lost by the employers.  Following the recommendations below will assist you in setting up an effective screening process.

To run a complete and thorough background check you must do the following:

1. Validate the social security number.
2. Run a good alias multi-jurisdictional criminal check as a supplemental check.  (Some sites will advertise these as a “National Check” but never run these as a stand-alone search.
3. Check every county the person has lived in for the past seven to ten years under all names.  This check should be done onsite at the county seat of the jurisdiction.
4. Check the Federal Criminal Records Database.
5. Do an Employment and Education Check on the applicant.
6. If needed, run a Motor Vehicle Records Check.
7. Run a reference check on the applicant.

Before the interviewing process starts, the company must create a job description clearly defining the essential function of the job.  Having a clearly defined job description can provide legal protection for claims of discrimination or noncompliance with the ADA.  Below are seven critical items that every application needs as suggested by the Safe Hiring Audit written by Mike Sankey and Les Rosen:

1. The application needs to clearly state that there will be a background check or a background check will be performed.
2. There should be the broadest possible language asking about convictions and pending criminal cases.
3. A statement which says that any misstatements or omission of material facts may result in discontinuing of the hiring process or termination of employment.
4. The form should clarify that a criminal conviction is not automatic grounds for rejection.
5. The form should indicate the applicant consents to a background check being done.
6. The application form must ask for all employment for the past 7-10 years.
7. The application form should ask for addresses for the past 7-10 years.

It is also very important to ask the correct questions in the interviewing process.  In the book, “The Safe Hiring Audit”, the authors suggest using behavior-based questions and open-ended questions in the interviewing process.

Behavior-based interviewing is one of the newest and most effective methods for establishing if a person is a good fit for the job and organization.

The following questions are questions that should be asked in every interview:

1. Do you have any concerns about a background check being done?
2. Do you have any concerns with us checking for criminal convictions?
3. When questioned, what will your previous employers say?
4. Will your past employers tell us that there were any issues with tardiness, meeting job requirements, etc?
5. Tell us about any unexplained gaps in your employment history.

Using the correct application form, asking pertinent questions in relation to the position, and running a complete and thorough background check will help you hire the very best people.

Paul Marcus is a licensed Private Investigator, TX License Number A13506.  He is the owner of Affordable Searches, LLC, a licensed Investigations Company in the state of Texas, License Number A17778.  For more information, contact Paul by phone at 281-494-6691, by email at pjm@affordablesearches.com, or visit his website at www.AffordableSearches.com.