If Only I Knew Then What I Know Now
  

 

For more than half-a-century, Kansas courts have recognized legal actions for negligent hiring. Hiring qualified, competent, honest, and trustworthy staff does not have to be like a poker game where the "luck of the draw" determines who wins and who loses. Strategies for human resources professionals can draw a winning hand every time a new employee is hired.

 

1. Job Application. Ask the applicant to authorize disclosure of written references from former employers, including 1) evaluations conducted before the employee's separation from employment; and 2) whether the employee was voluntarily or involuntarily released and the reasons for release. The employee must also have access to this information.

 

Ask the applicant to sign a release allowing access to criminal history record information. The employer is not liable for hiring decisions based upon an applicant's criminal history, provided the information obtained reasonably bears upon trustworthiness or the well-being of the employer's other employees or customers.

 

Ask the applicant to provide written authorization to procure a consumer credit report. The Fair Credit Reporting Act includes specific requirements for the procurement and use of credit reports. The information should not be used in violation of federal or state equal employment opportunity laws or regulations.

 

2. Applicant Interview. Ask the applicant to review the application with you line by line. Pay attention to omissions -- are they inadvertent or intentional? Are there mistakes, mis-statements, falsehoods? Are there automatic disqualifiers such as residency status that was not fully disclosed?

 

Ask questions to determine a "propensity" to engage in improper conduct, such as:
   "What will former supervisor tell me about you?"
   "What will I learn from court records?"
   "Tell me about your former supervisor?"
   "What do you like to do when you are not working?"

 

3. Conducting Reference Checks. Obtain references from former employers as authorized in the application. Make your request in writing to preserve your good faith qualified immunity. Court records and credit reports should be utilized in accordance with applicable law. The official State of Kansas website, accessKansas provides information about civil and criminal court records. The Kansas Department of Revenue, Division of Motor Vehicles maintains driver's license and vehicle registration records. Employers may access these records.

 

You have more than one ace in your deck. A pre-employment background check should reflect the specifics of the job sought. Use existing laws to your advantage. Follow the law in obtaining and utilizing applicant authorizations to obtain credit history, criminal history records, civil court records and driving records. Always 1) require a complete application; 2) review it with the applicant; 3) do reference checks; 4) maintain documentation; 5) be consistent; and 6) if you deviate from general policies, prepare a memo to the file that states the rationale for the deviation.

 

If you play your cards right, your organization will be successful in recruiting and retaining qualified, competent, and fit employees.

 
 

The Firm Profile | News/Current Topics | Contacts | Home

 

515 South Kansas Avenue
Topeka, KS  66603-3999
Tel.: 785-233-0593
FAX.: 785-233-8870
gsep@goodellstrattonlaw.com
 
Copyright 2005 Goodell, Stratton, Edmonds & Palmer, L.L.P.