The main employment background check Texas employers have to carry out is to ensure that the subject is eligible to work in the USA. There are so many immigrants trying to enter the country illegally, and then hide behind the legality of employment, that this is a must.
However, that is only the start. Negligent hiring is as much a problem in Texas as it is anywhere else in the USA, and all employers and personnel managers should be aware of what their obligations and their legal responsibilities are. If an employee illegally or negligently harms another employee or a member of the public while carrying out their duty, then the employer will have to demonstrate that the appropriate employment background checks have been carried out and that it could not reasonable have been foreseen that such an incident could have occurred.
Thus, if a new employee you have just hired assaults one of his or her workmates during an argument, and it can be shown that a reasonable criminal check would have shown that the person had a history of losing their temper during an argument, then you would be liable, and can be sued by the employee who was assaulted.
Similarly, let’s say you send an employee, or even a sub-contractor, out to a customer’s home and the customer is subsequently assaulted. If a check of the proceedings of a local criminal court could have shown that the employee had a record of violent behavior towards certain sections of society then you will be guilty of negligent hiring. Exactly this happened to Kirby, the vacuum cleaner company, when a contractor raped a customer to whom he was demonstrating a cleaner in her home. It cost Kirby $160,000 for not properly checking the contractor out.
There are also internal reasons for carrying out such checks. It is a known fact that almost half of all job applicants falsify their work history, about 40% exaggerate their education credentials and more than 20% lie about certificates, licenses, etc. If you employ somebody, especially in a job requiring certain qualifications and experience, then you have a right to know the truth about these aspects of their history. Unfortunately, honesty being as it is, to be certain you will have to carry out employment history and education screening, and also ask to physically see the qualifications.
If you are at all suspicious about the latter, you might even have to send them back to the issuing body for verification. Although failure to do so might not result in you appearing in court with reference to an assault on an employee or customer, it could still result in a case of negligent employment. Sometimes the employment of a dishonest or incompetent accountant could result in financial loss to the company and shareholders for which you, as personnel or resource manager, could be liable. Credit checks are easy to carry out, even by untrained personnel.
Irrespective of the type of background check Texas employers carry out as routine, if you are involved in direct contact with the public, children or older people you are well advised to carry out as comprehensive a pre-employment screening program as you can, and even employ a professional to do it for you. It is where these groups are involved that most court cases for negligent hiring occur, and you be absolutely certain that there is nothing in your new employee’s background that you have missed.
A major problem with criminal background checks, not only in Texas but throughout the USA, is that there is no central database for federal, state and even local criminal records. You have to check with individual courts for their own records, and even then many insist that you attend personally to pick up the records. Only 25 states have fully automated records, allowing easy screening and many states are beginning to restrict the personal data you are allowed to access, such as birth dates and Social Security numbers, making it next to impossible to identify that you have the right records for the right people. The only national databases are accessible only by genuine law enforcement officers.
Prior to commencing a background check Texas judiciary strongly recommend that you fully understand the rights of the subject. For example, if you intend to employ a third party to carry out the screening for you, then you must receive written permission from the subject allowing you to do this. It’s not needed if you have the background checks carried out by a company employee, only if it is contracted out.
Negligent hiring cases are so common that practically all larger businesses employ investigation specialists to carry out their employment checks. Possible background screening that can be carried out are credit history and rating, social security checks and the subject’s medical background. The latter is highly regulated as to what information is allowed to be imparted and what can be done with it. Most employers, however, restrict themselves to the main background check Texas employers have to make of ensuring nationality, carry out a basic criminal record check, and then check up on the applicant’s employment and perhaps residential history.
Generally that is sufficient, unless the position offered or type of business involved demands a higher level of security and hence of employment background checks.
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