An Essential, but Treacherous Step in Making the Best Hiring Decisions

These days, it is incumbent upon employers to use various pre-employment testing and background checks to properly vet their prospective employees.  Screening can range from a review of credit reports and criminal checks to verification of educational pedigree and references. Additionally, it would seem wise (if not natural) to peruse a candidate’s social media accounts. However, the vetting process can be extremely dangerous if not done properly – resulting in a lawsuit and the considerable legal fees that accompany it. Thus, a delicate balance must be struck in the scope and nature of the pre-employment screening process.

The vetting process for prospective hires is a necessary evil, as employers are under a common law duty to exercise reasonable care in selecting, supervising, and controlling their employees:

  • This duty includes a reasonable investigation into the prospective employee’s work experience, background, character, and qualifications.
  • Employers need to ask what kind of work and contact with the public do their employees have? Is it direct or indirect? Do the employees travel to the customer or vice versa? The answer to these questions directly informs how a pre-employment screening process is conducted.
  • Further, employers must look at relationships between employees and management – has any conduct or history made the potential for harm foreseeable?

Even though pre-employment screening is an absolute must, employers can minimize the risk of being sued by taking certain affirmative actions:

  • Apply the same procedure to all employees and/or applicants to avoid claims of discrimination in evaluation. This must be done across the board or employers expose themselves to costly lawsuits
  • Observe the requirements imposed by certain Federal, State, and local statutes governing the data you obtain.
  • When it comes to social media, do not try and “friend” or add a prospective hire to your network to gain insight into their private pages – doing so severely amplifies an employer’s risk of getting sued.

Before implementing a candidate “vetting” program or making a significant hiring decision, it is important to consult an attorney. Contact Matthew J. Simmons at Shepherd Law, LLC, (404) 492-8871 (ext. 103), msimmons@shepherdlaw.net if you would like to discuss this or other legal issues further.

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