1. Get their written authorization. Make sure you get a written authorization from the employee/volunteer outlining their grant of permission to you for conducting the check, the purpose of the check, and a promise not to hold the service liable for use of the information obtained.
2. Check your state laws. Many states have laws regulating the use of such information and how you must go about obtaining it. There may be limitations on the use of the information, and a requirement that the individual be notified if denial of employment is based on any negative information you obtain. Many states also have specific requirements for EMS personnel with criminal records, and an obligation is often on the EMS organization to check the criminal history and not employ persons with certain convictions, or an obligation is placed on the individual EMS provider to report certain convictions to the state or their EMS organization. Also, if you intend to conduct more extensive background investigations of employees, or obtain credit histories (which may be relevant in the case of someone handling company funds) you may be obligated to follow the stricter notice and authorization requirements of the Federal Fair Credit Reporting Act.
3. Ask for the information directly from the employee/volunteer. You should ask any job applicants or applicants for membership in your service to provide you with information on past convictions. This is best done on the application form, with a verification statement at the end of the form that the responses the person gives are complete and accurate. That way, if they lie about it or give you incomplete information, you are in a better defensive position if you later take an adverse action against the individual because of convictions that show up in a criminal history check that the person did not report on the application. Keep in mind, that in the employment context, you should generally only ask about convictions, and not arrests (remember, one is innocent until proven guilty!) and there may be limitations on how far back you can go in your inquiry, depending on state law. You should always note on the form that any convictions are not necessarily going to preclude the person from membership or employment. In all cases, when you deny employment or membership due to convictions, it should be for things that are relevant to the job, for example, DUI convictions are relevant to operating an emergency vehicle, theft convictions are relevant to the person’s honesty and integrity when going into a resident’s home and having access to their valuables.
4. Don’t have someone start until they are checked out first!. It defeats the purpose if you put the person on the truck before you verify that they are a suitable employee. What if they are on the truck for a few weeks, have an accident with the vehicle because the person drove too fast, and the criminal history comes back with a list of moving violations, including reckless driving? Well, if a third party was injured in the vehicle accident, you can bet on a lawsuit for negligent hiring!
5. Keep the information confidential. Make sure you have a designated officer or management person receiving the reports, and that the information is kept secure and accessible only to those with a need to know who will be making the employment/membership decisions. This stuff should also be locked up in secure personnel files. You should also consider having a policy on how you will handle inquiries about such information, particularly reference check requests from other organizations. You want to be honest and up front, but you also don’t want to be giving out information about a current or former employee/member unless you have to. There is also a risk of a defamation lawsuit if you give out information or opinions about someone and that information turns out to be false, but truth is a defense in such cases. Your organization should also limit the number of people who are permitted to give out information about current or former members or employees to ensure consistency and minimize legal risk. Now even though you should keep employment information like this confidential, it is best not to give that assurance to the employee or volunteer, as that may raise the expectation of privacy of the information and could subject you to a potential invasion of privacy claim if the information gets out and adversely affects the person.
The authorization, disclaimers, and verification statements can often be included at the end of the membership or employment application form to encompass all the areas you need to cover to ensure the maximum legal protection for you and your service.
Courtesy of Page, Wolfberg & Wirth, LLC, www.pwwemslaw.com.
Copyright 2001 Page, Wolfberg & Wirth, LLC, All Rights Reserved