SEP 2016

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92 DAYSPA | SEPTEMBER 2016 Check, Please! Criminal background checks can save employers a world of trouble in the long run, but make sure you apply them legally. By Michael L. Antoline, JD Your spa's bookkeeper has retired and, after a couple of weeks of interviewing applicants, you found someone you think will be a good replacement. She comes with experience and solid references, so no need for further delay, right? Not so fast. As a respon- sible business owner, you should consider performing a criminal background check on this new hire. It may surprise you to learn, however, that there are a couple of good reasons not to perform such checks. First, they can be expensive, costing an average of $60 to $70, but as much as $100, per candidate. Second, the process requires waiting before you hire. In this case, unprocessed receipts are stacking up and ven- dors' invoices are going unpaid. You need to bring in a bookkeeper as soon as possible. Besides, you're the spa owner—hiring without conducting a criminal background check is your risk to take. If money goes missing, that's just the price you'll have to pay, right? Yes, but that price might be much greater than you think. Hiring the wrong person can have far greater ramifi cations than a less- than-perfect profi t-and-loss statement. PREVENTING NEGLIGENCE Suppose you fi ll the position and a third party, such as a customer or supplier, is somehow harmed by this hiree. You, as the business owner, can be sued for neg- ligent hiring or negligent retention of an employee. This occurs if the three elements of negligent hiring/ retention are met: The employee is incompetent or unfi t [1] ; the employer knew or should have known that hiring this person would create a particular risk or hazard; and that particular harm materializes. [2] Negligent hiring generally occurs when there's a problem in the employee's pre-hire past. Negligent re- tention occurs when a current employee engages in a bad act while employed either within or outside the scope of employment. The magic words in the second element are "knew or should have known." What does it mean that a business owner "knew or should have known" their employee was unfi t? This is the language, established in case law, that creates a legal duty on the part of the owner to investigate before hiring. And how is that done? Background checks. © GETTY IMAGES [1] Roman Catholic Bishop v. Superior Court, 42 Cal. App. 4th 1556, 1564-1565 (Cal. App. 4th Dist. 1996) [2] Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1054 (Cal. App. 2nd Dist. 1996) LEGAL PAD

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