General Circular No. 001405

To: Heads of State Agencies and Human Resource Directors

Subject: Employment Background Checks - Reducing Liability

Issue Date: September 19, 2000

I. New Access to State Employment History through the OPEN system

If you knew that an applicant had been fired for stealing, would you still hire him?

New options have been added to the OPEN system to help you avoid costly hiring mistakes.

Now, you can quickly check applicants’ prior state employment for separations. The OPEN system will show you an applicant’s separation history, including the type of each separation. It will also show you when an applicant has been barred from state employment by the Director or the Civil Service Commission. (Barred individuals cannot be hired.)

In the past, the Department of State Civil Service routinely screened appointees against this history to identify individuals who had been barred or previously dismissed from state service. Since this check was not made until the appointment documentation was processed, the employee was on board before the check was made. By making this information available through the OPEN system, we are enabling you to make these checks BEFORE the applicants go to work, so you can avoid investing orientation and training resources in unsuitable appointees.

Human Resource Officers who have access to the OPEN system are now responsible for using that system to check the state employment background of any applicant proposed for appointment. Be sure to DOCUMENT that this check has been made.

Detailed procedures and helpful hints for using the system are at the end of this circular.

II. Critical Elements of Application Review

Failure to check a potential appointee’s background can leave your agency open to charges of negligent hiring. Human Resource Officers can reduce the risks by taking some basic steps while doing background checks.

Pay special attention to applicants who indicate that they have been fired from a job or that they have been convicted of or pled guilty to a felony. (Items 13 and 14 on the State Pre-Employment Application Form, "SF-10"). Be sure all applicants complete these items on their applications. If an applicant answers "yes" to either question, check the details carefully. Even if an applicant indicates that he has not been convicted of or pled guilty to a felony, the nature of the job that you are filling may require you to check that information yourself. (Will this person have special access to people who are not able to fend for themselves?) In some cases, you may be negligent for taking an applicant’s word when you had a duty to verify the truth.

You should also pay special attention to gaps in employment history. The applicant could have been in school or voluntarily unemployed during those gaps, but he could be omitting a job from which he was fired. He could even have been serving time for a felony that he denied in Question 13. Be sure to ask the applicant what was happening during any gaps—and verify the answer.

Former employers are in the best position to tell you about an applicant’s work history. Make sure their information agrees with what the applicant gave you. If an applicant falsely portrayed one aspect of his employment history, consider what else he may have misrepresented. Whenever possible, you should verify employment dates, reason for leaving, job title, rates of pay, nature of the tasks performed, work habits, and whether the person would be considered for re-hiring. It is important to verify this information from both private and government employers.

Because many people misrepresent their background and credentials, it is always important to verify that what the applicant says about his background is true. Employers who don’t, often regret it. In addition to reducing the chances of making a poor hiring decision, reference checking reduces your risk of negligent hiring liability.

III. Providing and Using Employment References

When you are asked to provide information about a current or former employee, you should respond in good faith, with accurate information. Louisiana law protects employers who do so, as well as employers who reasonably rely on such information—as long as they are not required by law to investigate further. Louisiana Revised Statute 23:291 provides:

Furthermore, the State of Louisiana should be considered a single employer. We all have a special obligation to protect each other by providing other state officers with accurate and thorough information about current and former employees.

IV. Documenting Background Checks

To get the most value from the effort you invest in background checks, it is critical that you document your efforts. Even if your check reveals no information whatsoever, it is important that you DOCUMENT YOUR EFFORTS. Documenting your efforts to check an applicant’s background may protect you from liability. The recent case of Harrington v. Louisiana State Board of Elementary and Secondary Education, 714 So.2d 845, (La.App. 4 Cir. 1998) provides a warning of what can happen when you don’t check.

John Veller, the director of the Culinary Apprenticeship Program at Delgado Community College, spent an evening with one of the Program’s students at a wine tasting and visiting restaurants on Program business. During the evening, he raped her. The court of appeal found Delgado liable because it hired the Program director without checking his criminal history.

Here’s the kicker: Nothing in his background indicated that he might rape a student! When he was hired, he had convictions for possession of marijuana with intent to distribute, theft or grand larceny, and interstate transportation of forged securities. He also had an outstanding arrest warrant for an unspecified offense in Illinois. Delgado had to pay his victim simply because it did not check his background!

Veller was an authority figure whose job gave him a unique opportunity to be alone with students and to commit crimes against them. The state service is full of jobs that give employees unique opportunities to commit offenses against co-workers, clients, and other members of the public. Take, for example, a former corrections officer who was fired for stealing from a juvenile. If he were hired as a dormitory employee at a juvenile school (where he would have easy access to juveniles and their property) and stole from a dormitory resident, the hiring agency could easily be held liable for hiring him. This is especially true if the hiring agency could discover the employee’s history by simply checking a computer screen and making a phone call to the former agency.

You can see by this real-life case that at least one Louisiana appellate court thinks it is crucial to check out the people you hire. Delgado was held liable when one of its employees raped a student because it did not check the employee’s background—even though doing so would not have given a clue that he might do what he did. Please take heed of this decision and remember that the time and effort you spend checking out your applicants’ backgrounds can more than pay off.

V. The Continuing Role of the Department of State Civil Service

Material falsification of an application remains a violation of Civil Service Rules and will result in sanctions up to and including being barred from state service. If you feel that an applicant has materially falsified his application to secure employment, promotion, or other benefits, such as higher pay, you should take the action you deem appropriate and then report your findings and your action to the Accountability Division of the Department of State Civil Service. You may also call the Accountability Division to discuss your alternatives before you decide what action you should take.

The Department of State Civil Service will periodically verify that agencies are conducting background checks to ensure that state employees are indeed suitable for employment. You must be prepared to produce documentation on background checks, particularly when you discover discrepancies in an application.

VI. Using OPEN to Check Background

The new screens on OPEN will show you whether an applicant is barred and when and why he previously left the classified state service. On the second page of OPEN menu options, choose either "View Personnel Records by Name" or "View Personnel Records by SSN."

Searching by Social Security Number will take you directly to the individual’s separation history. Searching by name will present you with an alphabetical listing. Tab to your applicant’s name. (You may have to use the page down key.) Put a 5 in the space to the left of the name, and enter. The individual’s separation history will be displayed.

If the applicant is barred, the word "barred" will be highlighted in white and followed by a Y. AN APPLICANT WHO IS BARRED CANNOT BE HIRED.

The reasons for separation are divided into these eight categories:

Resign (Voluntary)

Resigned to Avoid Dismissal

Separated From Probation

Dismissal (for fault)

Non-Disciplinary Removal (e.g. 12.6 Removal)

Layoff

Termination of Temporary Appointment (e.g. Job Appointment)

Other

Neither the Civil Service Rules nor the Department forbids hiring people who were involuntarily dismissed from state service, but we strongly urge you to get the facts and circumstances surrounding the separation and to discuss the situation with the former agency and the applicant before hiring your new employee. Remember also to check the Civil Service Rules if you plan to hire an applicant non-competitively based on prior state service.

The separation categories (listed above) should guide you in your background checks, but you cannot depend on them exclusively. You should verify the information claimed on the application and talk to the former employer about the applicant’s job performance, even if the employee resigned voluntarily. You may discover that the employee resigned voluntarily—and the employer discovered that he was stealing money after he resigned.

We will also caution you that separation from a temporary appointment will always show up as Termination of Temporary Appointment—even if the employee was dismissed for fault. Separation From Probation is similarly ambiguous. The employee may have been a bad fit for the particular job or the employee may have been dismissed for fault.

When you discover discrepancies between an application and actual employment history—whether in the state service or not—and feel those discrepancies constitute material falsification of an application, please send the SF-10 and a statement of your findings and your actions to the Civil Service Accountability Division.

VIII. ISIS: Helpful But Not To Be Used Exclusively

When the Integrated Statewide Information System becomes available, it will provide more detailed information about state employment history. You should use that system as yet another source of information in your background checks, but you should always check the OPEN system for older information that may not be converted to ISIS.

IX. Contact Person

For more information about conducting background checks or about any information provided in this circular, please contact Jean Tozer, Chief of the Accountability Division, at (225) 219-9437.

Sincerely,

Allen H. Reynolds

Director