Employ Respons Rights J (2009) 21:231–249
`DOI 10.1007/s10672-009-9111-9
`
`Expected Practices in Background Checking: Review
`of the Human Resource Management Literature
`
`Julia Levashina & Michael A. Campion
`
`Published online: 5 May 2009
`# Springer Science + Business Media, LLC 2009
`
`Abstract In recent years we have seen a growing attention to the issue of background checks.
`Research on pre-employment inquires suggests that job candidates engage in extensive
`misrepresentation of academic and work credentials listed on resumes and job applications. An
`employer who fails to perform a thorough background check on a prospective employee may
`be vulnerable to the charges of negligent hiring or employment discrimination. Based on a
`review of the scientific and professional literature in human resource management, we defined
`expected management practices in background checking including the need to understand the
`job requirements, methods of background checks, the extensiveness of the background checks,
`the role of the application forms, and the use of interviews. Recent legal cases are also included
`to illustrate what practices are or are not defensible.
`
`Key words background checks . expected practices in background checking .
`negligent hiring
`
`Introduction
`
`In recent years, we have seen the growing attention to the issue of background checks. This was
`driven by several reasons. First, some evidence suggests that job candidates engage in extensive
`misrepresentation of academic and work credentials listed on resumes and job applications. For
`example, in its 2007 Hiring Index study, ADP1 Screening and Selection Services (2007)
`reported that 41% of individuals’ resumes showed discrepancies in employment, credentials,
`or education history. ADP’s Hiring index is based on calculations of the 5.8 million
`
`1Automatic Data Processing, Inc.
`J. Levashina (*)
`College of Business Administration, Kent State University, P.O. Box 5190, Kent, OH 44242-0001, USA
`e-mail: jlevashi@kent.edu
`
`M. A. Campion
`Krannert Graduate School of Management, Purdue University, 403 W. State St.,
`West Lafayette, IN 47906, USA
`e-mail: campionm@purdue.edu
`
`GUARDIAN EXHIBIT 1013
`Guardian Alliance Technologies, Inc. v. Miller
`
`1
`
`

`

`232
`
`Employ Respons Rights J (2009) 21:231–249
`
`background verifications (e.g., criminal records, employment, education records) performed
`by the company during the 2006 calendar year (http://www.adphire.com/hiringindex/).
`Similar results were reported in the InfoLink Screening Services’ 2006 Background
`Screening Hit Ratio Report (InfoLink Screening Services 2007). That report also suggested
`that applicants stretch the truth more often in 2006 than in 2005. The discrepancies regarding
`what applicants reported to potential employers on their past employment increased from
`36.5% in 2005 to 49.4% in 2006, and discrepancies in education verification increased from
`14.1% in 2005 to 21.5% in 2006 (http://www.infolinkscreening.com/InfoLink/Downloads/
`2006 Background ScreeningHitRatioReport.pdf).
`Second, an employer who fails to perform a thorough background check on a
`prospective employee may be vulnerable to the charges of negligent hiring or employment
`discrimination. Employers can be held liable for negligent hiring if they fail to do a
`background check on a prospective employee who then commits a crime or inflicts harm on
`a customer or third party in the course of performing his or her job duties (Anthony et al.
`1999; Boles 1997; Cook 1988). Also, some research findings suggest that in the absence of
`background checks, employers may use race and other perceived correlates of criminal
`activity to assess the likelihood of an applicant’s previous felony convictions and factor
`such assessments into the hiring decision (Holzer and Stoll 2006). That is, employers who
`do criminal background checks are more likely to eliminate applicants on the basis of revealed
`information, while employers who do not may eliminate applicants on the basis of perceived
`criminality. The Bureau of Justice statistics estimates that 28 percent of black males, 16 percent
`of Hispanic males, and 4 percent of white males will serve time in state or federal prisons
`(Bonczar and Beck 1997). Since the proportion of African Americans with past criminal
`conviction is quite large, employers may be more likely to eliminate black applicants on the
`basis of perceived criminality and thus discriminate against black candidates.
`Despite the importance of and attention to background checking, some employers
`continue not to do background checks or not to do them adequately. The reports on surveys
`of hiring practices suggest that not all companies conduct background checks as part of
`their hiring processes (Anonymous 2004b; Burke 2005). Moreover, studies suggest that
`small businesses are less likely to conduct applicant background investigations (Anonymous
`2004b; Holzer and Stoll 2006). For example, according to a survey conducted by the
`Society for Human Resource Management, only 34% of employers always verify educa-
`tional records, 53% of employers verify former job titles, and 41% always verify certifi-
`cations and licenses (Burke 2005).
`Therefore, the purposes of this article are (1) to remind practitioners what the scientific
`and professional literature has recommending for some period of time, and (2) to illustrate
`what practices are and are not defensible. The expected practices in checking the
`backgrounds of job applicants are identified based on a review of the scientific and
`professional literature in human resource management. This will reveal overall expectations
`regarding background checks, knowledge of job requirements, expectations regarding
`application forms,
`interviews, reference checks, official record checks, and degree of
`thoroughness of the background check. Finally, recent cases on negligent hiring at the state
`appellate and state supreme court levels will be included to illustrate.
`
`Human Resource Management Literature Search
`
`The literature was searched using two databases: PsycINFO and Business Source Complete.
`Keywords used in the search included the following: negligent hiring, hiring and
`
`2
`
`

`

`Employ Respons Rights J (2009) 21:231–249
`
`233
`
`negligence, background checks and background checking, hiring and background checks,
`and hiring and reference checks. An initial search yielded 412 citations. After repeated
`citations were deleted, the remaining citations were narrowed down by relevance and by
`quality indicators (e.g., preference for peer-reviewed publications). In total, the search
`resulted in 119 articles and books on the topic.
`
`Negligent Hiring and Background Checks
`
`Virtually all found HR literature discusses background checks in the context of negligent
`hiring theory. The negligent hiring liability is one of
`the most serious negative
`consequences employers are likely to face when they do not perform background checking
`or perform it inadequately. Thus, the legal theory of negligent hiring determines the
`expectations regarding background checks and will be briefly discussed here as well.
`The law of negligent hiring has evolved from the common law doctrine (court-made
`rulings) of master-servant relationships. This doctrine was recognized as early as 1894 in
`Illinois when the state Supreme Court held that a master has a duty to exercise reasonable
`care in selection and employment of careful and skillful employees (Tiangco and Kleiner
`1999). In order for a claim based on negligent hiring to be successful, it must first be
`established that the employer had a duty to the injured third party, and there is some
`relationship between the injurious act and the employment situation. For example, in
`Ponticas v. K.M.S. Investments (1983) an apartment caretaker entered one of the units using
`master keys and attempted to sexually assault its resident. The company owed a duty of
`care to the plaintiff because it gave the employee in the caretaker position direct access to
`all privately occupied apartments. The company was found liable for negligent hiring
`because it failed to perform a necessary pre-employment investigation of the caretaker and
`did not discover his previous criminal assault conviction. The employment situation must
`provide the employee with the opportunity to cause the injury in order for the employer to
`be liable under a negligent hiring theory.
`After the duty of care is established, most courts consider the following factors when
`deciding a negligent hiring case: (1) an employment relationship existed between the
`defendant and the tortfeasor; (2) the employee has characteristics that amount to incompetence
`or unfitness for the position; (3) the employer knew or should have known through reasonable
`investigation that the employee was unfit for the position; (4) the employee negligently or
`intentionally caused the plaintiff’s injuries; (5) the negligent hiring was the proximate cause of
`the plaintiff’s injuries; and (6) actual damage or harm were resulted from the tortious act
`(Evans v. Ohio State University 1996; Susser and Jett 1987; Woska 1991).
`This doctrine has several direct implications for background checks such as: (a) an
`employer has a duty to perform a reasonable investigation of the employee’s background;
`(b) job duties that might create opportunities for committing crimes should be identified;
`and (c) the background of job candidates should be screened against identified potential
`types of crimes.
`
`Background Checking is an Expected Practice
`
`The topic of negligent hiring and the requirement of organizations to conduct background
`checks are expected knowledge in human resource (HR) management. Three bodies of
`literature offer evidence in support of this assertion. The first one includes HR literature
`which consists of general textbooks on HR and practitioner- and research-oriented HR
`
`3
`
`

`

`234
`
`Employ Respons Rights J (2009) 21:231–249
`
`journals. Textbooks can be considered as defining basic expected knowledge and practices
`in a field. Nearly all textbooks on HR describe negligent hiring and make recommendations
`to conduct background checks, including textbooks for specialty courses on hiring (Cascio
`2003; DeCenzo and Robbins 2005; Fisher et al. 2006; French 2007; Harris 1997). The
`quotes below reflect the advice of common textbooks:
`&
`“An employer is guilty of negligent hiring if he or she failed to perform a thorough
`background check on an employee whose infliction of harm on a customer or third
`party could have been predicted by the employing firm” (Anthony et al. 1999, p. 261).
`“Employers protect against negligent hiring claims by…rejecting applicants who…have
`conviction records for offenses directly related and important to the job in question”
`(Dessler 2005, p. 194).
`
`&
`
`The issue of background checking is extensively discussed in the popular HR magazines
`oriented to practitioners in the field such as
`
`& Workforce (formerly Personnel Journal),
`& HRFocus
`& HRMagazine
`&
`Personnel
`&
`Personnel Today
`& Employee Relations Today
`&
`Society for Human Resource Management webpage
`& Management Research News
`& Managerial Law
`
`Articles on the topic of background checking were also found in many research journals
`related to HR (e.g., Personnel Psychology, Public Personnel Management, Employee
`Responsibilities and Rights Journal, Society for Advanced Management Journal, Journal of
`Workplace Learning, and Business and Professional Ethics Journal).
`The second body of literature supporting the assertion that background checking is
`expected knowledge in HR management is an extension of the first body of literature,
`except the articles are published in specialty magazines. These articles demonstrate that
`there has been communication with organizations that may not have an HR staff, such as
`small organizations. These specialty magazines include a wide range of industries, trades,
`and types of organizations. Examples include:
`
`&
`Security (Dow 2001; Gold 2004; Lashier 2006; Service 1988; Svendson 1999)
`& Law enforcement (Hibler and Kurke 1995)
`&
`Safety (Jacob 2004; Smith 2002)
`& Nursing (Fiesta 1996; Nabhan 1998; Shumaker 2003)
`& Healthcare (Bradley and Moore 2004; also see previously referenced Martanegara and
`Kleiner 2003)
`& Child care (Kiraly 2002)
`&
`Social work (Lynch and Versen 2003)
`&
`Property management (Papi 1994; Walter 1994)
`& Hotel management (Atkinson 2004; Clay and Stephens 1995)
`& Restaurant management (Berta 2005; DeCotiis 2006; Kerr 2006)
`& Heating and air conditioning (Hall 2004, 2005; Liegl 2001)
`& Trucking (Zahl 2000)
`
`4
`
`

`

`Employ Respons Rights J (2009) 21:231–249
`
`235
`
`& Education (Fossey and Vincent 2000; Dorris and Kleiner 2003)
`&
`Public sector (Connerley et al. 2001; Johnson and Indvik 1994; Kondrasuk et al. 2001;
`Zhoa and Kleiner 2003)
`& Nonprofit (Le et al. 2003)
`&
`Insurance (Spoden and Rosen 1998)
`&
`Information systems (Khirallah 2002)
`& Marketing research (McCarter 1995)
`&
`Small business (Maxwell 2000; Usry and Mosier 1991)
`
`The third body of literature supporting the assertion that it is expected knowledge in HR
`management that organizations should conduct background checks is the large number of
`legal articles on the topic. Examples include Arsenault et al. (2002), Camacho (1993),
`Crebs and Rush (1996), Fife (2006), Gregory (1988), HR Policy Association (2003), Lear
`(1997), Ongerth (2005), Oswald (2004), Schmitt (1980), Shattuck (1989), Smith (1999),
`Sullivan (1998), and Woska (1991).
`Finally, courts seem to be agreeing with the assertion that background checking is an
`expected practice in selection of competent and safe employees. The mere fact that the
`background investigation was not conducted is evidence of negligence in hiring even when
`an investigation would not have disclosed information indicating the prospective employee’s
`unfitness (Susser and Jett 1987).
`
`Background Checks Should be Based on Knowledge of Job Requirements
`
`A fundamental truism in HR management is that hiring procedures should be based on the
`job requirements. Every one of
`the textbooks cited above recommends acquiring
`knowledge of job requirements (usually through a job analysis) as the first step in
`developing a hiring process. The Federal Government’s guidelines for the development and
`use of hiring procedures strongly emphasize this point (Uniform Guidelines on Employee
`Selection Procedures, Sections 14A, 14B2, and 14C2). Many of the articles explicitly
`discuss the need for knowledge of the job requirements in order to determine the types of
`backgrounds that might be related to job performance. Some authors recommend a formal
`job analysis (e.g., Heneman and Judge 2006; Hibler and Kurke 1995; Kiraly 2002;
`Ryan and Lasek 1991), while others only suggest that the job requirements be determined
`in some manner (e.g., Dessler 2005; Martanegara and Kleiner 2003; Shattuck 1989;
`Woska 1991).
`The theory of negligent hiring suggests identifying the opportunities that might exist for
`committing criminal acts by employees performing the required job tasks, as well as
`determining employment circumstances that may facilitate or enable employees to commit
`criminal acts (e.g., access to homes and personal possessions of others, wearing a uniform,
`and security responsibilities). Woska (1991) suggested developing a liability avoidance
`matrix. He suggested that employer should (a) identify potential liability factors for jobs
`(e.g., high stress, driving vehicles, working with children, access to private property), and
`(b) identify the traits related to the potential risk for each of the job tasks and determine the
`types of backgrounds that should be checked (e.g., propensity to violence, driving records,
`criminal records).
`Two court cases (Betty Y. v. Al-Hellou 1999; Carlsen v. Wackenhut Corp. 1994) could be
`used to illustrate the importance of understanding job requirements in order to identify what
`types of background should be checked. In Betty Y. v. Al-Hellou (1999), a manual worker
`rehabilitating vacant apartments sexually assaulted a fourteen year-old boy who lived at an
`
`5
`
`

`

`236
`
`Employ Respons Rights J (2009) 21:231–249
`
`the worker has been
`in the same building. The employer was aware that
`apartment
`convicted of child molesting before the worker was hired. The employer was sued for
`negligent hiring. The trial and appellate courts agreed that the employer is not guilty of
`negligent hiring because the manual worker was not hired to work with the victim, and the
`job duties did not facilitate or enable the worker to commit the rape. The court concluded
`that a child sex offender performing manual labor in vacant apartments does not represent
`an unreasonable risk of harm to others.
`In Carlsen v. Wackenhut Corp. (1994), a part-time security guard, who worked for the
`company that provided security at a concert, attempted to rape a girl who asked for his help
`during the concert. The company was sued for negligent hiring. The appellate court
`reversed summary judgment in favor of employer because the employer did not conduct a
`background check or a reference check, and did not investigate inconsistencies in the job
`application. Although the company argued that it had no duty to investigate the security
`guard background because he was only a part-time (“T-shirt”) employee, and his job
`application did not suggest he had any propensity for assaultive behaviors, the appellate
`court stated that his job put him in a position of responsibility and authorized to perform
`security functions during concerts (e.g., protect young concertgoers, performing pat-down
`and metal searches of incoming patrons). Therefore,
`the company should have more
`extensively examined his background before hiring him.
`In addition, a number of states have laws concerning the job requirements for certain
`positions, including security personnel, firefighters, real estate brokers, financial institution
`personnel, bus drivers, emergency service personnel, and personnel who work with children
`or vulnerable adults (e.g., the elderly, the disabled). For example, a New Mexico law
`requires that a job candidate may not be permanently appointed as a police officer unless he
`or she is found, after examination by a certified psychologist, to be free of any emotional or
`mental condition which might adversely affect his or her performance (NMSA 1978, § 29-
`7-8(A)(4); Bennett 2006). Thus, the knowledge of job requirements may help an employer
`to identify the potential liabilities and the types of background checks to be performed in
`order to hire a competent and safe employee for a particular position.
`
`Methods of Background Checks
`
`Application Forms Virtually all hiring processes start with an application form. It typically
`includes the candidate’s name and contact information, education and work history, and
`possibly information relevant to skills possessed and positions sought. For purposes of
`avoiding negligent hiring, the minimum expectations based on the HR literature reviewed
`are threefold. First, the education and work history should be examined for any unexplained
`gaps because such gaps might represent jobs from which the candidate was terminated, time
`spent in prison, or other negative information (e.g., Anonymous 2006b; Dessler 2005;
`Dorris and Kleiner 2003; Green and Reibstein 1988; Gomez-Mejia et al. 2007; Heneman
`and Judge 2006; Le and Kleiner 2000; Le et al. 2003; Smith 2002; Susser and Jett 1987;
`Wang and Kleiner 2000; Woska 1991).
`Second, the application should seek references and include a written authorization to
`check references and background that the candidate must sign (e.g., Anonymous 2006b;
`Anthony et al. 1999; Arsenault et al. 2002; Barada 1996; Camacho 1993; Davis 2006;
`Dessler 2005; Dorris and Kleiner 2003; Garvey 2001; Green and Reibstein 1988; Heneman
`and Judge 2006; Jacob 2004; Sack 1993; Shumaker 2003; Smith 1999, 2002; Wang and
`Kleiner 2000; Woska 1991). Third, the application form should specifically ask about
`criminal history (e.g., Anonymous 2006b; Arsenault et al. 2002; Gatewood and Feild
`
`6
`
`

`

`Employ Respons Rights J (2009) 21:231–249
`
`237
`
`2001). Finally, the application form should be examined for any omissions or incomplete
`parts that might signal some problems in the work history. For example, in Cramer v.
`Housing Opportunities Commission of Montgomery County (1985), the job candidate did
`not complete a portion of application requesting dates of military service. During the court
`case, it was discovered that the job candidate was imprisoned for 4 years right after he was
`discharged from the military.
`
`References, Official Records, and Criminal Records Two types of checks are usually
`recommended such as reference checks and official record checks. Almost all organizations
`conduct reference checks (e.g., Gatewood and Feild 2001; Green and Reibstein 1988;
`Heneman and Judge 2006; Kiraly 2002; Le and Kleiner 2000; Le at al. 2003). References
`should be contacted to confirm that the applicant actually worked at previous jobs during
`the time periods stated on the job application and in the positions indicated and to inquire
`about the candidate’s work ethic, reliability, integrity, or other work-related attributes or job
`performance capabilities (e.g., Andler and Herbst 2003; Anonymous 2006a; Arsenault et al.
`2002; Barada 1996; Camacho 1993; Dorris and Kleiner 2003; Edwards and Kleiner 2002;
`Fenton et al. 1997; Furman 1995; Gatewood and Feild 2001; Green and Reibstein 1988;
`Heneman and Judge 2006; Kiraly 2002; Le and Kleiner 2000; Le et al. 2003; Sack 1993;
`Smith 2002; Towle 2002; Wilson 2001; Zhao and Kleiner 2003). References can be from
`past supervisors, co-workers, teachers, or friends. Previous employers may be contacted in
`person, by telephone, or by letter.
`Many courts considered the failure to check references from the most recent jobs that
`would contain information about an employee’s wrongdoing as evidence of negligent hiring
`(Hebert v. Aulerich 2008; Interim Healthcare of Fort Wayne, Inc. v. Moyer 2001). For
`instance, in Interim Healthcare of Fort Wayne, Inc. v. Moyer (2001), a home health aide,
`who was not qualified or authorized to administer medication to her patients, injected one
`of her patients with insulin causing a seizure. The company was sued for negligent
`hiring. Before the aide was hired, the company conducted the background investigation
`of the aide,
`including reference check, and a criminal record check. The company
`received two positive written references, and no prior criminal history was revealed. Also,
`the aide passed a required series of written and skills tests. However, the company was
`found liable for negligent hiring because it failed to check the references from the most
`recent employers2.
`At the same time, many employers are reluctant to provide reference information to
`prospective employers because they fear a lawsuit on grounds of invasion of privacy or
`defamation of character (Matejkovic and Matejkovic 2006). However, this concern is
`mainly unwarranted because only 3% of employers have had legal problems with reference
`checks (Heneman and Judge 2006). Moreover, job candidate’s consent to release such
`information and qualified privilege, or immunity from liability to provide references about
`former employers, might give employers powerful defenses, even when they communicate
`damaging information (Walsh 2007).
`Official records should always be checked. Depending on the job, some of the following
`information should be verified: social security numbers (identity verification), eligibility for
`
`2 Although the court was presented with the evidences showing that the former employers would have
`revealed negative employment information (e.g., one of the aide’s patients (with no history of seizures)
`suffered a seizure under the aide’s sole care), the evidences were not required by the court.
`
`7
`
`

`

`238
`
`Employ Respons Rights J (2009) 21:231–249
`
`employment for non-residents, educational data and histories (e.g., degree verifications),
`employment verification, license verifications, driving records (e.g., citations, accidents, and
`licenses), credit information, military service, and criminal records (e.g., county and federal
`court criminal histories). For example, public carriers, including buses, trains, airlines, and
`taxis, are expected to verify operator’s licenses and the history of driving violations of potential
`job candidates. Moreover, checking employment eligibility is required by the Illegal
`Immigration Reform and Immigrant Responsibility Act of 1996, as amended 8 U.S.C. 1324a.
`Checking educational and criminal records is virtually always recommended (e.g.,
`Andler and Herbst 2003; Anonymous 2004a, 2006a; Arsenault et al. 2002; Camacho 1993;
`Connerley et al. 2001; Davis 2006; Dorris and Kleiner 2003; Edwards and Kleiner 2002;
`Elzey 2002; Fenton et al. 1997; Furman 1995; Gatewood and Feild 2001; Green and
`Reibstein 1988; Heneman and Judge 2006; Hibler and Kurke 1995; Le and Kleiner 2000;
`Martanegara and Kleiner 2003; Perline and Goldschmidt 2004; Sack 1993; Shumaker 2003;
`Smith 2002; Svendson 1999; Wang and Kleiner 2000; Zhao and Kleiner 2003). Some
`courts stated that the failure to obtain a criminal history record for job applicants for the
`positions involving a serious risk of harm to others may constitute a breach of duty and
`leads to liability for negligent hiring (Cramer v. Housing Opportunities Commission of
`Montgomery County 1985; Morris v. JTM Materials, Inc. 2002). The expectation to
`perform a criminal record check may be partially due to increased availability of job
`candidates’ history of criminal record to employers. More than half of all states allow free
`internet access to some or all criminal records. Otherwise, employers can obtain access to a
`job candidate’s conviction history for about $20 and a few minutes online (Geiger 2006).
`The liability for negligent hiring may even arise in situations when job candidates lie
`about their criminal convictions. For example in Morris v. JTM Materials, Inc. (2002), an
`employee of an interstate motor carrier injured a person when he was driving a tractor. The
`employee was intoxicated at the time of the collision. The carrier was sued for negligent
`hiring. The employee had falsified his employment application, stating that he has never
`been convicted of a crime. The employer did not perform a criminal background check and
`failed to discover several offences (e.g., driving while intoxicated, and possession of
`methamphetamine). The appellate court found the company liable for negligent hiring
`stating that the company did not exercised reasonable care by qualifying as a driver an
`individual who had committed several drug- or alcohol-related offenses and had falsified
`his employment application.
`It is important to note, however, that the fact that an employee has been convicted of a
`crime does not automatically render that employee “incompetent” and should be rejected.
`The Equal Employment Opportunity Commission argues that a policy of denying an
`individual employment on the basis of criminal conviction is unlawful under Title VII
`unless the employer can prove the business necessity to do so (Matejkovic and Matejkovic
`2006). Also, some states (e.g., New York, Pennsylvania, Wisconsin, Hawaii, and Kansas)
`prohibit the denial of employment solely on the basis of applicant’s criminal history except
`for certain occupations that are closed to individuals with a felony conviction under state or
`federal law, or crimes which directly, substantially, or reasonably relate to the duties of the
`job (e.g., Geiger 2006; Gerlach 2006; Walsh 2007). For example, in Grafer v. New York
`City Civil Service Commission (1992), a man with drunk-driving convictions applied for a
`position with the New York City Fire Department. Considering the relationship between the
`nature of the prior criminal record and the responsibilities of the position, the Appellate
`Division upheld the department’s rejection of his application, concluding that: “petitioner’s
`prior offenses are such as to involve an unreasonable risk to property and to the safety and
`welfare of the general public” (p. 337).
`
`8
`
`

`

`Employ Respons Rights J (2009) 21:231–249
`
`239
`
`In another case (Estate of Douglas Presley, Jr. v. CCS of Conway 2004), a person was
`killed when he was crushed between two semi-tractor trailers. Trucking companies were
`sued for negligent hiring of truck drivers. Although one of the drivers had alcohol related
`offenses but completely stopped drinking alcohol two years before he was hired by one of
`those trucking companies, the court stated that the driver’s previous alcohol-related offenses
`would have no bearing on whether he was a good choice for a truck driver. The court
`dismissed the claim. Thus, a more individualized assessment of criminal convictions should
`occur, focusing on the seriousness of the offense, its relation to the job in question, and its
`recency.
`A distinction should be made between arrests and convictions. It is recommended that
`employers should not use information related to prior arrests in making hiring decisions
`(Geiger 2006; Gerlach 2006; Walsh 2007). Individuals who are arrested might be picked up
`for questioning due to proximity to a crime, mistaken identity, or other reasons. Therefore,
`an arrest does not indicate any valid information about a job candidate’s character, prior
`behavior, or job fit.
`It is also recognized that an organization may become aware of criminal history not
`through an official records check, but through an admission from the candidate. In such
`instances, there is an obligation to follow up on such information to understand its potential
`impact on the employment decision (e.g., Andler and Herbst 2003; Crebs and Rush 1996;
`Gomez-Mejia et al. 2007; Usry and Mosier 1991; Wang and Kleiner 2000; Zhao and
`Kleiner 2003).
`
`Interviews It is common HR advice to conduct an employment interview as one component
`of the process to avoid negligent hiring (e.g., Fenton et al. 1997; Hibler and Kurke 1995;
`Martanegara and Kleiner 2003; Sack 1993; Wang and Kleiner 2000; Zhao and Kleiner
`2003). The doctrine of negligent hiring states that an employer may be liable for the
`negligent or tortuous conduct of its employees if the employer breaches its duty to use due
`care in selecting and retaining only competent and safe employees (Camacho 1993). The
`interview provides an opportunity to assess both the job related credentials of candidates
`and candidate’s propensity for committing dangerous acts at the work place. The interview
`is the single most utilized selection approach (Huffcutt and Youngcourt 2007).
`When an employer is charged with the tort of negligent hiring of a dangerous employee,
`the employee’s character may become a viable issue and any evidence which relates to the
`particular employee’s reputation or prior violent history may be introduced. The interview
`is an opportunity to address some of the issues noted above, such as asking for explanations
`for gaps in work and educational history and for omissions on the application forms,
`assessing an applicant’s honesty or trustworthiness, and following up on any admissions of
`criminal history. For example, In Welsh Manufacturing v. Pinkerton’s Inc. (1984), the court
`held that an adequate investigation into the background of a potential security guard includes
`not only checking both past employers and references, but also soliciting affirmative
`statements from the applicant attesting to an applicant’s honesty, trustworthiness, and
`reliability. Also, in Cramer v. Housing Opportunities Commission of Montgomery County
`(1985), the appellate court was concern with the fact that during the employment interview
`for the position of housing inspector, the employer did not ask questions about the parts of
`the job application that were not completed and did not ask any questions assessing job
`candidates’ trustworthiness.
`The interview is also an opportunity to inquire about candidate attributes or behavioral
`tendencies that might be related to violence. For example, candidates could be asked direct
`questions about past violent or criminal behavior (e.g., Gomez-Mejia et al. 2007; Zhao and
`
`9
`
`

`

`240
`
`Employ Respons Rights J (2009) 21:231–249
`
`Kleiner 2003), past behavior questions about how they have dealt with conflict, difficult
`people, frustration, or other challenges in the past (e.g., Barron 1993; Dorris and Kleiner
`2003), and hypothetical questions about how they might deal in the future with conflict,
`difficult people, frustration, or other challenges in the work setting (e.g., Baron 1993;
`Greengard 1995). Furthermore, there is substantial evidence that there are relationships
`between violent behavior and certain personality traits such as psychopathy (Catchpole and
`Gretton