EMPLOYEE BACKGROUND CHECKS: WALKING THE FINE LINE
BY JOHN T. BENTIVOGLIO
A person is hired as a firefighter with your department. You check his references, and he gets satisfactory marks. After completing his probationary period, he is arrested for arson in connection with a fire that causes $500,000 in damage. It turns out he had two prior arrests for arson.
Another person joins your department after a current employee gives the applicant a positive reference: “He was in my basic fire class, and he`s an excellent firefighter.” A year later, the new member sexually assaults a coworker. The assailant previously had been arrested for rape but pleaded guilty to a misdemeanor assault charge.
Can a fire department be held legally responsible in these cases?
There`s a good chance it can. In a majority of states, employers can be held liable for negligently hiring workers who pose a danger to coworkers or the public.1 For example, a woman living in a county-operated housing complex was raped by a housing inspector. Maryland`s highest court ruled that the woman could sue the housing authority for negligently hiring the inspector, who previously had been convicted of robbery and assault and was under indictment for sexual assault.2 In another case, a local government was successfully sued for negligently hiring a school bus driver who molested a student. The driver had a previous conviction for sexual assault. Some courts have gone further, ruling that companies can be liable for retaining employees who were not a threat when hired but who later turned out to be dangerous.
The issue of background checks for fire/rescue personnel is not an abstract legal issue. In April 1995, the governor of Missouri temporarily reassigned the state EMS director in response to a series of investigative articles in the St. Louis Post-Dispatch, revealing that the state had issued licenses to numerous paramedics and EMTs who had significant criminal records.3 One of the articles cited four paramedics who were issued licenses despite prior felony convictions for sexual abuse of a minor; theft of controlled substances while employed with an EMS agency; sexual assault of a coworker after attempting to inject the victim with an immobilizing drug; and embezzlement of more than $29,000 by an administrator of a local EMS agency.4
A “CATCH-22” FOR FIRE DEPARTMENTS
Unfortunately, fire departments face a proverbial “Catch-22” when it comes to screening members for dangerous backgrounds. On the one hand, courts have imposed a duty on employers to conduct a reasonable inquiry into the backgrounds of potential employees, particularly those who occupy a position of authority or trust. On the other, numerous federal and state antidiscrimination and privacy laws limit the methods an employer can use to gather information on a potential applicant.
The bottom line is that employers–including fire departments–must walk a fine line between conducting reasonably thorough preemployment background checks and complying with antidiscrimination and privacy laws. This article discusses the potential liability of fire departments for negligent hiring decisions and offers practical suggestions on how your department can avoid such lawsuits.
NEGLIGENT HIRING
Traditionally, employers have been legally responsible only for the misconduct of employees that occurs within the “course of employment.” Thus, if a truck driver negligently causes an accident that injures another person, the driver`s company could be liable because driving is clearly within the truck driver`s “course of employment.” But, if the truck driver assaults someone at a truck stop, there is no liability because the assault is not within the driver`s “course of employment.”
In recent years, courts have begun to hold employers responsible for violent outbursts committed by employees where–because of the nature of the job–an employee with a propensity to violence might pose a danger. Most of these “negligent-hiring” cases have involved persons employed in positions of authority or trust, such as an apartment maintenance worker,5 boy scout camp employee,6 and city employee at a neighborhood playground.7
In the Maryland case cited above, the court summarized the rationale for holding employers liable in such cases: “Where an employee is expected to come into contact with the public[,] the employer must make some reasonable inquiry before hiring or retaining the employee to ascertain his fitness….The nature and extent of the inquiry [varies] with the circumstances.”8 Although the case involved a public housing inspector, several courts have implied that similar suits can be brought for negligently hiring public safety personnel–including fire department personnel.9
ARE FIRE DEPARTMENTS REQUIRED TO CONDUCT BACKGROUND CHECKS?
Where an employee holds a position of trust, courts impose a duty on employers to conduct a reasonable preemployment background investigation to ensure that the employee is trustworthy. Does this duty extend to fire departments? The answer turns on whether firefighters occupy positions of trust.
Generally, firefighters are authorized to enter private property in response to emergencies, have access to building keys, and have routine (and sometimes intimate) contact with the public. Given the broad authority and trust placed in the hands of fire and rescue personnel, it seems clear that fire departments have the same or greater responsibility to investigate the backgrounds of new employees than do employers of maintenance workers, housing inspectors, and city park department employees.
The extent of the investigation should increase as the risk of danger posed by the employee increases. Although no case has set forth specific guidelines, fire departments would be well advised to require a review of the applicant`s criminal history record and employment references.
LIMITS ON BACKGROUND INVESTIGATIONS
Mindful of the law relating to negligent hiring, fire service managers might be tempted to rush out and conduct intrusive background checks. But, background investigations must comply with strict antidiscrimination and privacy laws. Among the most significant laws limiting preemployment background checks are the following:
Americans with Disabilities Act. The ADA prohibits employers from discriminating against persons with disabilities, including psychological disabilities. Thus, an employer (including a fire department) could not refuse to hire a person simply because he/she had received previous psychological counseling or treatment. Under the ADA, an employer must show that the employee`s disability poses a direct risk to the health or safety of the employee or others. In addition, the determination that a would-be employee poses such a threat must be made on a case-by-case basis–a blanket exclusion for persons with psychological disabilities is not permissible. Generally, an applicant with a recent history of violent behavior (even if related to a psychological condition) would pose a sufficient risk to justify rejecting the applicant.
Privacy laws. Federal and state privacy laws substantially limit the methods that can be used to investigate an applicant`s fitness for employment. For example, an appeals court in California ruled that the use of preemployment psychological testing violates the state`s constitutional right to privacy.10 Federal and state laws also impose strict limits on the use of polygraphs in the employment context.11
Criminal history records. Most negligent hiring cases have involved violent acts committed by employees who had previously been arrested or convicted of similar violent crimes. In these cases, the employer was held responsible for failing to conduct an adequate preemployment background investigation of the employee.
But, there are strict limits on the use of criminal history records. Although criminal history records may not be used for employment purposes unless authorized by state law,12 most states have enacted laws that authorize the use of such records for preemployment background checks for public safety positions, including fire department personnel. Such records, however, must be used only for authorized purposes; federal law makes the unauthorized disclosure of criminal history records a criminal offense.
Antidiscrimination laws. Title VII of the Civil Rights Act of 1965 prohibits racial discrimination in employment.13 Several courts have ruled that where a hiring policy that automatically rejects applicants with an arrest or conviction record has a disproportionate impact on racial minorities, such a policy violates Title VII.14 The use of arrest records is particularly troubling because they involve merely an allegation of wrongdoing.
This does not mean that employers cannot use arrest or conviction records in making hiring decisions. Rather, employers must go beyond the mere record of arrest or conviction to look at the facts underlying the record. In addition, the arrest or conviction must be somehow related to the job. In the context of fire departments, it seems clear that a prior criminal record for theft or violence would be sufficient to reject an applicant, particularly if the arrest or conviction had occurred recently.
PRACTICAL TIPS ON PREEMPLOYMENT BACKGROUND CHECKS
Given the significant public trust placed in the hands of fire and rescue personnel, fire departments have a duty to conduct reasonable preemployment inquiries to ensure that applicants do not pose a threat to the public. Such inquiries, however, must comply fully with federal and state law. Here are some practical suggestions on how to walk this fine line:
Establish a written policy. Nowhere is proper documentation more important than in the employment process. Departments should establish a formal policy that identifies what inquiries will be made and, just as important, what criteria will be used in assessing an applicant`s fitness for duty. The personnel conducting background investigations should fully document the results, and the records should be maintained for a reasonable amount of time.
Criminal record checks. Where authorized by state law, fire departments should request a search of federal and state criminal history records. Where an applicant has been convicted of a crime involving violence or a breach of trust, the applicant should be given an opportunity to offer an explanation. Unless the applicant offers a truly compelling explanation, such a conviction should be sufficient to disqualify the applicant.
Since arrest records involve only allegations of wrongdoing, the department should inquire into the facts surrounding the arrest, including calling the arresting police agency. If there is substantial evidence that the applicant committed an act demonstrating dishonesty or violent behavior, a department generally would be justified in refusing to hire the applicant.
Driving record. Fire departments should require an applicant to submit a current copy of his driving record as part of the application process. An applicant with numerous moving violations might pose a danger if allowed to drive fire apparatus, and an applicant who has one or more “failures to appear” might not be considered trustworthy.
Employment and personal references. Departments should require applicants to list all prior employment and to include the names and phone numbers of prior supervisors. Applicants also should be required to submit personal references. Departments should not accept applications that omit any requested information. Finally, if references are requested, they must be contacted and the information received documented in the applicant`s file. An employer may be negligent in failing to consult an applicant`s prior references in the same way as when failing to check his or her criminal history.
Authorization. The applicant should be required to sign an authorization form that allows the department to inquire into the applicant`s background, check criminal records, and contact the applicant`s personal and employment references.
Fire departments must screen potential new employees more carefully than ever before. Such inquiries, however, must be conducted within the limits of federal and state law. A well-considered background check policy that can identify potentially dangerous persons before they are hired can serve the dual goals of creating a safer workplace for employees and the public while also shielding the department from liability for negligent hiring. As with any employment process, however, employers must ensure that it is consistently and fairly enforced. n
© 1995 John T. Bentivoglio
Endnotes
1. See Employment Screening, Sect. 10.01 at 10-2 n.1 and 1994 Supp. (citing cases in 35 states recognizing the tort of “negligent hiring.”)
2. Cramer v. Housing Opportunities Commn. of Montgomery Cty., 304 Md. 705, 501 A.2d 35 (1985).
3. EMS Insider, April 1995, at 4.
4. “Convicted Paramedics Fall through Gap In State Law,” St. Louis Post-Dispatch, Dec. 27, 1994, at A1.
5. Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. App. 1980).
6. Infant C. v. Boy Scouts of Am., Inc., 239 Va. 572, 391 S.E.2d 322 (1990).
7. Haddock v. City of New York, 554 N.Y.S.2d 439, 553 N.E.2d 987 (Ct. App. 1990).
8. 304 Md. at 711, 501 A.2d at 38 (citations omitted).
9. See, e.g., Murdock v. Dinsmoor 892 F.2d 7 (1st Cir. 1989) (police department); Mulhern v. City of Scottsdale, 165 Ariz. 395, 799 P.2d 15 (Ct. App. 1990), rev. denied, (Oct. 23, 1990) (police department); cf. Mark v. Borough of Hatboro, Enterprise Fire Co., 856 F.Supp. 966 (E.D.Pa. 1994) (volunteer fire department).
10. Soroka v. Dayton Hudson Corp., 18 Cal. App. 4th 1200 (Ca. Ct. App. 1st 1991).
11. See, e.g., The Employee Polygraph Protection Act of 1988, 29 U.S.C. Sects. 2001-09.
12. 28 C.F.R. Sect. 20.33 (1994).
13. 42 U.S.C. Sec. 2000e et seq., as amended.
14. See, e.g., Gregory v. Litton Systems Inc., 316 F.Supp. 401 (C.D. Cal. 1970), modified on other grounds, 472 F.2d 631 (9th Cir. 1972) (since there was no business necessity for the employer`s policy of rejecting applicants solely on the basis of prior arrest records, the policy`s disproportionate impact on racial minorities violated Title VII).
SHOULD VOLUNTEER DEPARTMENTS CONDUCT BACKGROUND CHECKS?
Although fire departments can be held responsible for negligently hiring paid firefighters, it is not clear whether courts would extend liability to volunteer departments for “negligent membership” decisions. Some states recognize a qualified immunity from liability for charitable organizations. Schultz v. Roman Catholic Archdiocese of Newark, 95 N.J. 530, 472 A.2d 531 (1984) (New Jersey). In these states, there is a good chance that a volunteer department could not be held responsible for negligently accepting a new member. In addition, volunteer departments may not be able to gain access to criminal history records, since a state law that authorizes the use of such records for “employment” purposes may not include applications for volunteer membership in the definition of employment.
Regardless of whether they are under the same legal duty as career departments, volunteer fire companies should review the backgrounds of applicants prior to accepting them for membership. Volunteer firefighters generally are vested with the same trust and authority as are paid personnel. Accordingly, a volunteer firefighter with a propensity to violence poses the same risk to the public as does a career firefighter with the same propensity.
If authorized by state law, volunteer departments should require a criminal history records check for applicants. The fire departments in Montgomery County and Prince George`s County, Maryland, require criminal history records checks on all new fire and rescue personnel–both career and volunteer. Even if criminal history records are not available, volunteer departments should contact the local police department in each local jurisdiction in which the applicant has lived within the recent past. The department should get a signed release from the applicant authorizing the department to collect such information. Finally, volunteer departments should contact personal and employment references prior to accepting applicants for membership.
–JOHN T. BENTIVOGLIO
JOHN T. BENTIVOGLIO is an associate with Miller, Cassidy, Larroca & Lewin in Washington, D.C.; a volunteer fire officer with the Bethesda-Chevy Chase (MD) Rescue Squad; and a paramedic/firefighter with the Kentland (MD) Volunteer Fire Department. He served as a professional staff member to Senator Joseph R. Biden, Jr., chairman of the Senate Judiciary Committee, from 1986 to 1992. He has a bachelor`s degree in environmental science from the University of California, Berkeley, and a J.D. from Georgetown University Law Center.