The Safe Hiring Blog

A Tale of Two References-One Makes You Liable for Damages and the Other Does Not

In a 2008 federal appeals case, two past medical employers gave past employment information for the same anesthesiologist. After the anesthesiologist, Dr. Robert Berry, moved on to yet another hospital, he botched a routine 15 minute procedure, leaving a patient in a permanent vegetative state due to Berry’s own addiction to drugs.

The new hospital and its insurance company settled with the victim and in turn sued the previous two medical organizations for misrepresentations in the past employment information given to the new hospital. The allegation was based upon misrepresentations since the new hospital claimed it hired Berry because the defendants did not give accurate information by withholding information about misconduct and drug use.

The first defendant was a medical group that was fully aware that Berry had a drug abuse issue. After giving Berry a second chance, Berry continued to misuse drugs. Berry was terminated for that reason.

 Against that backdrop, when asked for a recommendation by the new hospital, members of the medical group made statements suggesting Berry was an excellent clinician, would be an asset to any anesthesia service and that he was recommended highly as an anesthesiologist.

 The second medical provider was a hospital where Berry had practiced. Instead of saying anything positive or negative, the hospital simply provided dates of employment and occupation. However, the hospital also claimed the reason it did not go into detail was that “there was a large volume of inquiries.” Even though the hospital gave in-depth recommendations to 13 other physicians, it appeared that the hospital did not want to say anything about Dr. Berry.

 The first hospital failed to disclose that Berry had on-duty drug use, and that his undocumented and suspicious withdrawal of Demerol had “violated the standard of care,” or provide other negative information.

 In the decision, the appeals court had no difficulty finding that the medical group was clearly liable, under the theory that once a party volunteers information, it has a duty of care to insure the information is correct. Otherwise, it amounts to a misrepresentation by material omission. The court clarified that a party does not incur liability every time it casually makes an incorrect statement. However, the court noted that:

 “But if an employer makes a misleading statement in a referral letter about the performance of its former employees, the former employer may be liable for its statements if the facts and circumstances warrant. Here, defendants (medical group) were recommending an anesthesiologist, who had the lives of patients in his hands every day. Policy considerations dictate that the defendants had a duty to avoid misrepresentations in their referral letters if they mislead plaintiffs into thinking that Dr. Berry was an “excellent” anesthesiologist, where they had information that he was a drug addict.”

 The situation with the first hospital, however, was more complicated. The first hospital knew that Berry was a potential danger, but yet chose to say nothing, hiding behind a claim that they were too busy to provide more details.

 The Court noted that it found no Louisiana case, or cases outside of Louisiana, that imposed a requirement that a past employer reveal negative past information, absent a situation where the past employer made some sort of affirmative misrepresentation. In other words, the first hospital did not have a legal duty to voluntarily step up and give negative information, as long as it limited its report to just factual employment data such as dates and job title.

 The court noted that,

 “And although the (first hospital) might have had an ethical obligation to disclose their knowledge of Dr. Berry’s drug problems, they were also rightly concerned about a possible defamation claim if they communicated negative information about Dr. Berry.”

 The Court noted that if such an obligation were imposed upon employers, there would not only be privacy concerns, but it would create a burden if employers had to investigate each time if negative matters about a past employee was the type that had to be disclosed. The bottom line: if an employer limits itself to just dates of employment and job title, it has no obligation to warn of future dangerousness, provided the employer did not falsely mislead the new employer.

 That is why so many employers choose to not say anything either way. However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Some employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.

 That is why so many employers choose to not say anything either way. A practice has developed essentially that if you do not have something good to say, then don't say anything at all. 

However, contacting past employers is still one of the most vital aspects of due diligence. It can be as important as doing criminal checks. Employers make a costly mistake by not checking past employment because of the issues raised in this case and the expectation that past employers will not give any information but dates of employment and job title.

 Just documenting the fact that an effort was made will demonstrate due diligence. Verification of dates of employment and job titles are also critical because an employer must be concerned about unexplained gaps in the employment history.  Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.

 It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.

 The case is Kadlec Medical vs. Lakeview, 527 F.3d 412 (5th Cir. 2008)

For a copy of the case, contact Jared Callahan at jcallahan@esrcheck.com or by phone at 415-898-0044.

BRB Publications Launches New Web Page www.verifyprolicense.com Providing Access to State Licensing Boards

BRB Publications annouced today a new website that enables the public to verify individuals and businesses required to be licensed or have a certification or registration.

This free, new resource enables a researcher to check the representations people make to the public in day-to-day personal or business life. Users of www.verifyprolicense.com can choose an occupation or business category, by state, to find the direct address, phone number, and web page of the licensing or certification board. The resulting screen also provides a hot link to a License Validator to verify the license, permit, and registration information for individuals and or businesses. Another valuable feature of the search is that it often indicates when disciplinary action has been taken against an individual or business. This site is updated weekly and includes over 8,000 occupations with over 4,500 "name searchable" links providing immediate results.

According to BRB Publication’s CEO Michael Sankey, "Professional occupational licensing and non-voluntary certifications and registrations are generally a matter of public record, intended to protect the public from fraud and the misrepresentations of qualifications. It is simply a smart business practice to check on those with whom you deal, particularly if strangers come into a home, or if money and property are involved."

Also, the new website is dedicated to educating the public about The Sue Weaver C.A.U.S.E. (Consumer Awareness of Unsafe Service Employment).

About the Sue Weaver C.A.U.S.E.
On August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender. Ms. Weaver’s attacker was hired through a major department store to do service work in her home. In memory of Sue Weaver, C.A.U.S.E. was founded in 2004 as a non-profit organization that brings awareness and education to consumers and employers regarding the necessity of criminal background checks on all service employees, contractors and subcontractors hired to work in or near clients’ homes. For more information about C.A.U.S.E. visit www.sueweavercause.org.

Protecting Yourself When Inviting Workers Into Your Home — Five Easy Steps

By Les Rosen

Attorney at Law and President,
Employment Screening Resources

The news has been full lately of horror stories about innocent and unsuspecting people who opened their doors to home service providers or workers, and became the victims of serious crimes, including murder, right in their own homes. Many people routinely allow workers in their homes to perform a multitude of tasks. Workers come into homes to deliver appliances or furniture, act as nannies or caregivers, clean carpets, make home improvements, perform household repairs such as plumbing or electrical, and a multitude of other tasks.

Unfortunately, people can be particularly vulnerable in their own home. Help is harder to get, and if there are children, senior citizens or a disabled person at home, the risks can be even greater. Yet no state currently requires most workers who enter homes to have background checks. The results have been tragic.

Until there is a better solution, Employment Screening Resources (ESR) recommends the following five easy steps for people to protect themselves in their homes:

1. Deal only with reputable local businesses that do background checks. Before letting a stranger into your home, insist upon knowing the hiring polices of the company you are dealing with. A business should be able to tell you what precautions they take in hiring someone they plan to send inside your house. If the company you are talking to does not know the specifics, make them find out before you let their workers into your home. The important point is to determine if they check all past employers for AT LEAST 5 years (and 7-10 is better). Also, do they check for criminal records where a person has lived or worked for the past seven years. If the carpet cleaning firm, plumbing company or other service business will not give you the answers you need, then call someone else. It's just a matter of time before businesses get the message that safety is critical. In addition, being "bonded" is not always the same thing as being safe. The fact that a person has a bond does not mean that any firm has run a background check.

Also, don't let a small business tell you that it is too expense or difficult to practice safe hiring to make sure they are not sending a dangerous person into your home. That is simply not true. There are a number of steps any small business can take to make sure they are hiring safe and qualified people that cost next to nothing. It's just a matter of having a commitment to customer safety, as opposed to just hiring anyone they can find to do the job. See ESR article: "Five easy steps every small business can take TODAY to protect themselves and the public."

2. If you are hiring an individual and not a firm, what do you know about them? The best protection is to do past employment checks or reference checks on people who dealt with them in a business capacity. If you know that a person has been gainfully employed for the past few years, it lessens the possibility they have been incarcerated for a serious offense. Make sure they check out. If it does not seem right, then find someone else. A professional screening firm or private investigator can also be contacted to perform a criminal check.

3. For a sensitive position such as a nanny or caregiver, spend the money it takes to do it right. Contact a pre-employment screening firm or private investigator to check out the person. The most critical checks are past employment to verify where the person has been as well as a criminal check. When the well being of loved ones are on the line, the extra investment in security is well worth the small costs involved.

4. Use common sense. You may not check out everyone that comes to your home. A business for example, may come to your home just once to briefly drop something off or make a home repair. BUT use common sense. Have other people around if possible. Do not leave confidential information (such as checkbooks or credit card bills) or valuables lying around. In addition, do not tell store clerks or a person making a one-time visit anything confidential about your personal life, habits or customs that could make you a target in the future. For example, you don't need to tell a stranger if you are leaving town, or give information about your usual schedule, or if people you live with are away. And if you are uncomfortable for any reason, or something does not seem right, do not let the person in.

5. False sense of security--Be careful about do it yourself Internet solutions. There are some Internet sites that seem to suggest that they offer a national criminal record search. Unfortunately, a person may be lulled into a completely false sense of security if the name they are searching does not appear on one of these databases. In fact, the appearance of a person's name on a database is not an indication the person is criminal any more then the absence of a name shows they are not a criminal. Why? Because these Internet services are based upon databases that are best used by professional investigators or screening firms in conjunction with a number of other tools. The databases by themselves are not an authoritative source. Many of the Internet databases are names assembled from correctional or law enforcement databases, or from court repositories that are only as accurate as the individual counties that report records. There is no way to know if the records are complete, accurate or up to date, or if the record is even about the person you are looking for. Actual court files normally must be obtained to locate identifiers. In addition, there are large holes in the geographic coverage.

A consumer is much better off contacting a professional who knows how to utilize such databases, as well as numerous other tools in order to do a legal background check.

ESR is currently working on proposing legislation that would requires business to either engage in a background check of workers who go into homes or to provide consumers a notice that no checks been done. Until there is a better solution, consumers need to empower themselves by not hesitating to insist upon safety.

© Copyright 2008, Employment Screening Resources, Inc.  All Rights Reserved

Anonymous E-mail Reference Checks—Another Way to Get Sued

Employers have been presented with yet another “new” and supposedly revolutionary hiring tool—reference checking done by e-mail.  The idea is that each reference is promised that their evaluations will remain confidential and anonymous because the results are aggregated.    Job candidates are the ones that select the references that get the e-mails.  Instead of making phone calls, the references can just fill out an e-mail questionnaire.  The questionnaire is itself a scientifically designed assessment instrument that gives an assessment of the applicant.

On the surface, it can sound appealing as a reference can quickly respond to an email—no more time wasted on playing phone tag and the e-mail evaluations provides a scientific assessment for what is under the candidate’s hood.  And finally, the employer gets a candid assessment because the person giving the reference believes the actual scores to be confidential.

There are areas of concern for employers:

First, if a background firm is the conduit for such a service, it falls under the federal Fair Credit Reporting Act (FCRA).  One of the fundamental tenants of background checks is that there are no secrets.  If a candidate receives a bad score, the candidate arguably has a legal right to find out exactly what each individual reference said about them.  The problem of course is that the reference giver is led to believe that whatever they say will remain confidential.  Under certain circumstances, that simply may not be true.

Another issue is that an employer cannot conduct due diligence by letting job seekers dictate which past employers to check.  It is difficult to exercise due diligence when the applicant gets to pick and choose who is contacted for a reference.  There is also the possibility of a fake or set-up reference, or an applicant creating a fake identity and evaluating themselves.

Background firms on the other hand do not take the applicant's word for whether the past employer even existed.  A background firm will typically independently verify that the past employer existed as well as verify that the phone number is real. The whole idea behind due diligence as a legal defense is independent verification.  Even if past references are contacted for evaluation purposes, the task of verifying the truthfulness and accuracy of the employment history still requires a screening firm to independently obtain information from past employers.

Another issue is defamation. Just because an applicant signs a consent, that does not give permission for a reference to defame them with false or malicious information without liability. 

The bottom-line: Although these e-mail assessment tools may well be an excellent tool for giving in-depth scientifically formulated assessment about a candidate during the decision-making stage, their proper use should be carefully considered.  An employer should evaluate whether or not they provide protection if the employer is sued for negligent hiring and what other measures should be utilized.  Nor can a reference really rest assured that they can give anonymous evaluations without the candidate ever finding out how they specifically rated the candidate.   

This is yet another area where litigation may eventually decide what course employers should take and what rights applicants have.