Lack of A Background Check May Leave An Employer Liable For Negligent Hiring.
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You’re a retail employer. You have a job opening for a clerk and you place an ad in the local paper for the position. You receive applications from a dozen potential employees. You interview several prospective employees. One applicant honestly shares with you he had a problem in Illinois with a girlfriend, but had served his time. You believe in second chances and hire the applicant without doing a background check. What is your liability to customers if this new employee attacks one of them?
An employer in New Prague, Minnesota is dealing with this issue right now. Last summer, a 15 year old girl was raped by a convicted sex offender who was employed at the local Radio Shack. The family of the girl is now considering legal action against Radio Shack.
Minnesota state law does not generally require private employers to perform background checks. My law partner, Marylee Abrams has blogged in the past about considerations to look at before doing a background check. To avoid discrimination concerns, employers should require background checks on a consistent basis instead of “picking and choosing” when do to do them. In Minnesota, you can access public data online at the Bureau of Criminal Apprehension website for Minnesota criminal convictions within 15 years following the completion of the sentence. Pursuant to Minnesota Statute § 13.87, subd. 3(f), if you intend to access the BCA website to obtain information regarding an applicant for employment you must notify the applicant that a background check using the BCA website is being conducted.
It is important for employers to ask the right questions when hiring prospective employees. Do background checks consistently and especially for safety-sensitive positions. Lastly, don’t forget to ask candidates for references and then following up by contacting those references.
