Investigating Job Candidates

By Walter J. Liszka, Esq.

Making sound hiring decisions has always been a challenge, but the recent growth in negligent hiring and negligent retention lawsuits has made hiring decisions even more complicated. Negligent hiring and negligent retention lawsuits are often brought by persons who have been harmed by the actions of a company employee. For example, an employer was sued for $1.8 million when one of the company’s drivers hit a car full of senior citizens. The court ruled that the company was negligent because it did not search out–of–state driving records, which would have revealed a drunken driving conviction.

Employers that seek to minimize the likelihood of negligent hiring and negligent retention lawsuits are increasingly relying upon the services of private investigators to help them make prudent hiring decisions. Private investigators depend on computer databases or courthouse records to produce the information they seek. Following are some of the services that private investigators can perform for employers:

• Confirm an applicant’s education, professional licenses and previous employment.
• Determine if the applicant has been arrested, charged or convicted of a crime.
• Find out if the applicant was sentenced to jail and how long a sentence he/she served.
• Uncover any alias(es) that a job applicant may have used.
• Unearth any judgments or liens that have been filed against the applicant.
• Turn up a job applicant’s credit history*, driving record, telephone records, date of birth, home addresses and addresses of his/her relatives.

Because of cost factors, companies may decide to limit the use of private investigators to candidates for managerial or upper management positions. However, there are measures that all employers can take to reduce their legal liability in the area of negligent hiring. These steps include the following:

• Provide the applicant with an application form and make sure the form is filled out in full before the interview.
• Ask the applicant about criminal convictions.
• Question the applicant about any gaps in his/her employment history.
• Verify the accuracy of the applicant’s record of past employment, education and references.
• If there is a job–related need for the applicant’s driving record, ask the applicant for a summary of his/her driving record.
• Find out if the applicant has ever used another name.
• Check professional licenses.
• Be sure to obtain a signed consent for release of information from the applicant before checking references, etc.

*Editor's Note: Amendments to the Fair Credit Reporting Act have created new obligations for employers with regard to credit reports. To read more about these changes, click here.

Posted 10/22/1997