Background Checks for Employees
By Kathleen Pohlid Founder & Managing Member, Pohlid, PLLC | April 13, 2014
A mistake in hiring of an employee can pose significant liability for a hotel establishment. Background checks provide a measure of assurance that the applicant does not have indicators of behavior or risk which may undermine security and safety of guests or compromise the establishment's business. However, background checks can also expose employers to charges of discrimination. It is important that establishments use background checks as necessary, avoid improper use of background checks, and comply with federal and state laws when conducting them.
Here are some best practices to adopt with respect to background checks:
Be Aware of Your Establishment's Duty in Hiring
Numerous decisions are involved in the hiring process and there is an element of risk in hiring any employee. Establishments, like other employers, have a duty to exercise reasonable care when hiring individuals to avoid exposing others to an unreasonable risk of injury. A background check, coupled with checking employee references, is a measure of exercising such reasonable care to ensure that the employee is qualified to perform the duties in a responsible, safe and reliable manner.
When an employer can establish that it exercised reasonable care in making the hiring decision, it can avoid liability for the acts of employees done outside the scope of their employment which result in injury to other persons.
A background check provides evidence to demonstrate that an establishment exercised its duty of reasonable care before hiring. In Gargano v. Wyndham Skyline Tower Resorts, 907 F. Supp. 2d 628 (D.C. N.J. 2012), a federal judge held that Wyndham was not liable for negligent hiring of an employee who sexually assaulted an onsite employee of a housekeeping contractor. The hotel asserted that it had exercised due care by conducting a background check which did not reveal any past history of sexual assault and that the assault could not have been anticipated. The hotel was aware of prior incidents of outbursts by the employee and a pattern of argumentative behavior, none of which resulted in physical injuries or damage. Although the judge noted the outbursts indicated the employee "may not be a model employee," the incidents did not make sexual assault foreseeable. The judge found no case law to support the proposition that the mere "evidence of general character flaws or lapses" in an individual is sufficient to sustain a negligent hiring claim.