Background Screening Steps That Can Reduce Your Risk of a Bad Hire

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By Rod Fliegel, Jennifer L. Mora, and Molly Shah, Attorneys with Littler, a Global Employment and Labor Law Firm

Thorough background checks are a fundamental measure that employers can take to help minimize the risk of negligent hiring claims and other potential sources of liability that can follow and flow from employee misconduct.

Despite the increase in litigation against employers regarding the technical rules for obtaining background reports and the proliferation of so-called “ban the box” laws, there remain strong reasons for conducting thorough background checks.

Inadequate Diligence Creates Potential Risks

There are a number of reasons companies conduct thorough background screens on candidates before hiring them.

  • Background screening may be required by law for employees in certain industries, depending upon the nature of the job in question.
  • Even where no background screen is literally required by law, “bad hires” put companies at risk of negligent hiring lawsuits. Juries can award a variety of damages, including punitive damages and damages for pain and suffering.  With a sympathetic plaintiff, those damages can be very high.
  • In all instances, failure to properly screen employees can have serious business and financial consequences. For example, where the company has an established contract with its customers, failing to weed out “unfit” employees increases the company’s likelihood of losing accounts and even of being slapped with breach of contract claims.

Steps to Mitigate Your Risk

There are a number of ways in which employers can mitigate their risk:

  • Partner with a reputable background check provider that can meet the specific needs of the business.
  • Assessing the types of background screens that are appropriate.
  • Consult with legal counsel familiar with employers’ background check-related legal obligations under the various federal and state laws, including, without limitation, equal employment opportunity laws and regulations.

Lawfully Obtaining and Using Background Reports

There are aspects of the hiring process that are unique to background checks.

Specifically, separate authorization and disclosure forms are recommended for applicants to consent to background checks.

Various infrastructure issues should be evaluated to minimize legal risks under the fair credit reporting laws, such as the FCRA and related fair employment laws.

These risks include, but are not limited to, securing or limiting access to the system for ordering background checks and mailing any requisite notices to applicants before finalizing no-hire decisions.

So-called “ban the box” laws at the state and local level may impact the sequencing of the hiring events as well.

As an example, the City of San Francisco prohibits an employer from even inquiring into a job applicant’s criminal past without first interviewing the applicant.

Other “ban the box” jurisdictions include, but are not limited to, District of Columbia, Hawaii, Massachusetts, Minnesota, New Jersey, New York City and Seattle.

Some state laws also require some level of job-relatedness when considering a job applicant’s criminal conviction, including Hawaii, Pennsylvania, Wisconsin and New York.


Companies can take steps to better ensure the safety of their customers, employees and property.

Background screening, in partnership with a trustworthy background check provider, is a solid investment for your business.

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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