Background Checks

“What on earth does the title of this piece mean?” you ask.  It means the standard of reasonable care an employer must use when hiring people will depend on the risk of harm to innocent third parties.  “So, I can’t use the same background check for all the people I hire, regardless of the position to be filled?”  That’s exactly what it means.

For example, and admittedly a silly one, the same standard of care an employer would use when hiring a fry cook wouldn’t be the same standard of care expected when hiring a brain surgeon.  Because of the greater risk of harm likely to occur with a brain surgeon, the standard of reasonable care is going to be higher than would be expected for the fry cook.

Perhaps an easier way to understand all this is to define more clearly what “reasonable care” means.  One classic definition is reasonable care is that degree of care an ordinarily reasonable and prudent person would exercise under the same circumstances to avoid putting innocent third parties at risk of harm.  Hence, there’s a higher standard of care for airline pilots than for sales clerks – any reasonable and prudent person would perceive the higher standard of care for airline pilots!

With all sorts of jobs to fill, how is an employer supposed to know how much care is reasonable?  The logical thing to do is require all candidates for employment to submit a complete work history, provide appropriate references, and sign a waiver granting the prospective employer specific permission not only to verify the information on the resume or job application, but also to contact references.

Carrying out these three steps accomplishes two important objectives:

  1. It ensures that people are who they claim to be – and that they can do what they claim they can do.
  2.  If proves that the employer did, in fact, use reasonable care in the employment process to avoid harm to innocent third parties.

The net effect is to improve hiring practices and avoid any possible accusation of negligent hiring.