A Bakersfield woman and her two children were on their way to buy back-to-school clothes when a tractor-trailer ran a red light and slammed into their SUV. Mother and son sustained traumatic brain injuries, and they all suffered severe PTSD.
The family filed a personal injury lawsuit against the trucking company and the jury awarded the family a $70.5-million personal injury verdict — the largest-ever awarded in that area of California.
It was just an accident, one might argue. One moment in a lapse of the truck driver’s judgment over whether to stop short or push his luck on an amber. Haven’t we all been there? But it was more than that. And it might have been prevented.
During the 12-day trial, the plaintiff’s attorneys revealed that, in addition to running a red light, the driver’s commercial license had been suspended and he had been involved in 14 other collisions.
How did they know what everyone wished they’d known earlier?
A background check. I am not certain of the circumstances that allowed this driver to still be on the road. What I do know, however, is that an annual or semi-annual background review of this drivers’ record most likely would turn up red flags that might have helped avoid this serious tragedy.
Liability in accidents like this is only going to get costlier. Insurance companies are now starting to track the effect of what’s called “social inflation” on jury awards. This means public sentiment is trending toward larger awards and, at the same time, there are more negative views of big business.
Some industries already require regular, ongoing background checks. These include businesses that drive passengers, hospitals and nursing homes – basically, any occupation regulated by a state licensing agency, including registered nurses, doctors, teachers and counselors.
Annual background checks should also be considered for employees who deal with finances, visit clients at their homes or work with vulnerable people: the elderly, children or the disabled.
But even when the job isn’t a matter of physical safety, ongoing background checks are one of the best ways you can shield your business, employees and customers by providing another layer of financial and personal protection. This includes screening for that worker who might sell your inventory from home on eBay, the accountant who needs to bankroll his gambling problem with your or your client’s financial accounts, and the thief of time whose productivity is inextricably tied to his drug habit.
Even so, ongoing background checks shouldn’t be broadly applied. So how should they be used, and when?
- Clearly spell out your policy for conducting annual background checks of current employees. Include this policy in your company’s employee handbook.
- Make certain your policy is consistent for every employee doing the same work. For instance, you might run a criminal check on an accounting employee but run a driving record and criminal check on a truck driver.
- Consider conducting the annual background check in connection with an employee’s annual reviews.
- Hire an outside source so there is no conflict of interest, and in turn, an adversarial relationship. This is especially important in states like California, where it is illegal for an employer to obtain some kinds of background information on their own. A third party, though, can alert an employer if a red flag comes up.
(Remember, however, that you cannot fire an existing employee or deny an employment opportunity based upon a criminal conviction that is more than seven years old.)
A thorough background check goes beyond a criminal or driving record. Social media matters, too. A qualified background investigator can glean much about someone by examining posting histories, the groups they join and their online comments and Twitter feeds. Does your handbook include a social media policy? Now’s a good time to review and update yours — or to create one.
This is critical when your key personnel are also the face of your business. The higher the profile, the more sense it makes to conduct a regular review. You must be very specific in your company handbook that from time to time there will be a search of public social media because, just like drug testing, it can impact the company.
Annual background investigations are legal as long as you have company policies addressing them and if your handbook says that you’ll be doing semi-annual and annual background screening with the employee information on file. California, for instance, puts great emphasis on employee safety as well as protecting employee privacy.
When a background check turns up unfavorable results, what can you do?
It depends. If someone is driving for your company and gets a DUI, it’s safe to say you can remove them from behind the wheel, though you may not be able to fire them unless you have that specified in your company handbook. If your top salesman gets a DUI, you have a different set of circumstances.
There are limits to what steps you could, or should, take. Say you find out someone is involved in a domestic abuse case. There’s not much legally you can do with them in the workplace. But maybe you can provide an employee assistance program.
In general, employees should be monitored to some level if they are in charge of company checkbooks, handling funds, etc. Check regularly for tax liens, judgments and bankruptcies. You can’t do much about someone’s filing bankruptcy, but consider that putting a person in a position where they have access to company funds and handling money can be tempting.
Above all, be proactive.
Things always change; policies change, laws change. Especially in California, you need to be very active in adding or deleting to keep up with regulations and supply employees with the updated handbook. If something negative or even questionable comes up through the check, always consult with your company attorney and get legal advice.
