Civil Litigation & Background Checks
by Lynn Peterson, PFC Information Services, Inc.
Reputable staffing agencies routinely conduct criminal checks, Social Security Number verifications, and driving record checks as standard components of their candidate screening process. There is another type of background check that is not typically included in a standard background check - civil litigation.
CRIMINAL vs. CIVIL
Criminal cases are felonies and misdemeanors filed by the government. The penalties include jail, prison, probation and fines. Most civil litigation consists of torts or contracts cases.
Contract cases normally involve breach of contract or contract enforcement. Torts can encompass intentional actions - such as infliction of emotional distress - or unintentional actions which often arise from situations involving negligence. Tort cases can involve injury to property (trespassing or theft), to a person (assault or wrongful death), or to reputation (slander or liable).
Civil cases are brought by individuals or companies, usually through attorneys. Judgments in civil cases frequently involve money.
WHY CLIENTS REQUEST CIVIL CHECKS
Typically, a client who requests a civil litigation check is concerned about 3 things:
* A large number of lawsuits in which the job candidate was the plaintiff, which would indicate the candidate is litigious
* Lawsuits involving former employers. For example, sexual harassment or wrongful termination suits can be a sign the candidate might sue her next employer
* Restraining orders filed by, or against, the job candidate
RESTRAINING ORDERS ARE OF PARTICULAR CONCERN
A criminal background check will not usually find a restraining order.
EXAMPLE: A nanny agency client of ours placed a caregiver with no irregularities in her standard background check. The family was ecstatically happy with the nanny during the first few months. However, the nanny was increasingly taking on an almost parental role. The situation deteriorated to the point where she was fired.
Once terminated, the parents felt the nanny was stalking their children. The family contacted the agency and asked it to conduct a deeper background check.
My company repeated our original checks, but added a civil litigation check. With that, we found a restraining order against the nanny. A judge ruled she had stalked the children of another family that had fired her; a family not listed in her job history.
For everyone’s safety, it is also important to know about restraining orders filed by a job candidate. If she has filed an order against a boyfriend or abusive spouse, it is possible he might discover where she is working and show up at the home.
PROBLEMS WITH CIVIL LITIGATION CHECKS
To find out what really happened in a civil litigation case you must obtain copied, case file documents from the courthouse which can involve a great deal of time and expense.
Civil litigation files often do not include identifying information about the parties involved. Frequently there are no addresses, Social Security numbers, dates of birth, or driver’s license numbers.
If your job candidate has a common name, a large number of cases may be found that actually have nothing to do with that person. It will probably be impossible to determine if the cases involve your job candidate, and pulling each case file to search for identifying information can take weeks. Therefore, avoid civil litigation checks when a person’s name is common.
The Fair Credit Reporting Act (FCRA) limits the time in which civil records can be reported to 7 years, unless the candidate will be earning $75,000 or more. Several states limit the period of time, regardless of the employee’s salary.
NOT CONVICTED BUT HELD ACCOUNTABLE
Sometimes a defendant may not be convicted in a criminal case, but may still lose in civil court. Both the O.J. Simpson and Michael Jackson trials provide good examples of defendants who were not criminally convicted, but lost or settled the civil cases filed against them.
SHOULD CIVIL LITIGATION CHECKS BE PART OF A STANDARD BACKGROUND CHECK?
Because of the significant problems mentioned above, we do not recommend civil checks as a standard part of the background check. However, civil litigation checks can serve as a valuable tool, particularly when the search is focused on employment-related issues and restraining orders.
THE BOTTOM LINE IS: if your client wants a civil litigation check conducted you should be prepared to do so. However, you should also make the client aware of the problems inherent in these checks.
PFC Information Services, Inc., in Oakland, CA provides public records research and pre-employment background checks. PFC offers discount rates to APNA members.
