Posted On March 1, 2017 By In Health Law

Should an Urgent Care Operator Check the National Sex Offender Registry When Hiring Employees?

Urgent message: Failure to identify risks in a new hire’s background can result in “negligent hiring” liability for an urgent care operator, but there are also limitations in what information a center can seek on an applicant.

The approximately 7,100 urgent care centers in the United States employ physicians, NPs, PAs, RNs, medical assistants, technicians, and receptionists who provide walk-in patients with medical care for minor health conditions without an appointment. Most urgent care centers around the country are owned by physician‒entrepreneurs.

While many larger corporate and hospital-affiliated urgent care centers already have established human resources processes in place, properly vetting new hires is an important topic for smaller urgent care facilities and independent operators that may not have the bandwidth to employ a full-time HR specialist or who are unaware of critical hiring practices. This article examines the issue of whether an urgent care facility owner is required to consult the national sex offender registry in the hiring process.

For licensed professionals, such as MDs, DOs, NPs, PAs, and RNs, this issue can be resolved by the state licensing process, which may impose restrictions in light of past criminal convictions. However, there are numerous non-licensed staff who are employed at urgent care facilities, such as medical assistants, secretarial staff, and technicians. These individuals present a risk for the facility owner because their backgrounds are not typically subject to the heightened scrutiny of licensed professionals.

Background

Congress enacted the Sex Offender Registration and Notification Act as part of the Adam Walsh Child Protection and Safety Act in 2006.1 This legislation also incorporated the National Sex Offender Public Registry (NSOPR), which links public state, territorial, and tribal sex offender registries in a single national search site.2 It is important to note that the NSOPR does not have a single national database of all registered sex offenders nationwide. It uses web services to search the individual databases of the jurisdictions in real time.3

Discussion

Urgent care center owners must understand their obligations—if any—to search the database before hiring individuals. The potential liability is an important issue; if a center negligently hires a sexual predator who causes injury to a patient, owners could be liable for damages.

In most instances, there is a slim distinction between complying with state laws restricting the use of convictions in employment decisions and the responsibility of an employer not to engage in negligent hiring. As a result, state laws on the use of convictions in employment typically dovetail with legal rules on negligent hiring.4 The laws governing employer access to criminal records differ in each state. However, many state laws say these records can only be used by certain employers, such as law enforcement and child care facilities. Also, there are states that permit an employer to ask prospective employees about a criminal past—even if employers are not allowed to access criminal records.5

This particular aspect of this issue may be an urgent care owner’s greatest exposure to liability. Working with a knowledgeable and experienced employment law attorney will help centers comply with the specific state rules.

 

Negligent Hiring

Eighty-four percent of HR professionals surveyed reported that background screening uncovered issues that would not otherwise have been found. This has resulted in an estimated 79% of negligent hiring lawsuit verdicts against employers, with average jury award over $1 million.6

Negligent hiring must be a major concern for urgent care centers. In Illinois, for example, plaintiffs must prove three elements to establish a claim for negligent hiring: 1) the employer knew or should have known the employee had a particular unfitness for the position so as to create a danger of harm to third persons; 2) the particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and 3) this particular unfitness proximately caused the plaintiff’s injury.7

Employers in California and in states with similar laws shouldn’t make hasty employment decisions based on information obtained about an applicant through the national registry or a state criminal website. Such a decision could lead to costly litigation. However, in California, employers are able to protect staff and customers from potential risks: employers may make lawful employment decisions based on properly obtained criminal background checks and self-disclosed criminal history information.8 As a result, employers can make these hiring determinations based on court records documenting a sex offense conviction or conviction information self-disclosed by an applicant during the hiring process.9 Likewise, Texas enacted legislation in 2013 to protect employers from being sued for hiring people with prior criminal convictions.10

This result emphasizes the distinction between sex offender registry information and conviction records. Sex offender registry information in California, for example, is available online, while criminal conviction records are usually found by employers in a background check by a third-party service.

This distinction is critical, because background check companies must comply with state and federal fair credit reporting laws—which includes inter alia obtaining the applicant’s consent in advance and complying with the prescribed “adverse action” procedures.11 Similarly, employment attorneys in other states say employers generally are not required to look at the registries.12 Courts have held that there’s no legal duty to be aware that someone is on the list, and most states stipulate that an employer is not under a duty to inquire as to whether an employee has been convicted of crimes in the past.13 To that end, the New York Court of Appeals held that “[l]iability will attach on such a claim only when the employer knew or should have known of the employee’s violent propensities.”14

This exception from liability may very well come into play in the urgent care center setting. For instance, an urgent care center hires a person who is a registered sex offender, convicted of inappropriate behavior with a minor. As a result, if he is a licensed medical professional, he’ll have state-imposed restrictions on his ability to treat patients under age 21. If a staff member, there are no available licensing restrictions. In some jurisdictions, the employer may be liable for damages from a person’s actions. The Colorado Supreme Court addressed this scenario by endorsing the proposition that:

where an employer hires a person for a job requiring frequent contact with members of the public, or involving close contact with particular persons as a result of a special relationship between such persons and the employer, the employer’s duty of reasonable care is not satisfied by a mere review of personal data disclosed by the applicant on a job application form or during a personal interview.15

The Court went on to say:

in the absence of circumstances antecedently giving the employer reason to believe that the job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public with whom the applicant will be in frequent contact or to particular persons standing in a special relationship to the employer and with whom the applicant will have close contact, we decline to impose upon the employer the duty to obtain and review official records of an applicant’s criminal history.16

Thus, in this example, unless an employer in Colorado had reason to believe that a job applicant would be an undue risk of harm to patients, an employer’s duty of reasonable care doesn’t extend to searching for and reviewing official records of an applicant’s criminal history.17 Courts have held that under a negligent hiring theory, whether harm is foreseeable requires an assessment of “whether the risk of harm from an employee to a person such as the plaintiff was reasonably foreseeable as a direct result of the employment.”18

Employee Background Checks: The Basics

Employee background checks can be a source of potential liability for employers. Employers must be very careful as to what kind of information they seek. When in doubt, it’s best to contact an employment attorney for the specific rules in your state.

Things to keep in mind when conducting an employee background check:

·         Be reasonable: Running a credit report and checking on references may make sense but going further—reviewing court records, interviewing neighbors, or requiring physicals—may run afoul of workers’ privacy.
·         Be business-related: Background information sought must be directly related to the employee’s job responsibilities.
·         Get applicants’ consent: Consent is required for certain sensitive information like credit reports. Consent is typically easiest asked for on the job application.

 

Records employers can likely consider, depending upon state law, when performing an employee background check:

·         Credit reports
·         Drug tests
·         Driving records
·         Social Security number
·         Court records
·         Character references
·         Property ownership records
·         State licensing records
·         Past employers
·         Personal references
·         Sex offender lists

 

Records employers generally cannot consider when performing an employee background check:

·         Criminal records: Varies by state and may be limited to certain types of employers like law enforcement and child care.
·         Bankruptcies: Although a matter of public record, cannot be a factor in any hiring decision.
·         Workers compensation: Information may be used only to determine if the applicant is able to perform required work.
·         Medical records: Medical records are confidential and cannot be released without an applicant’s knowledge or authorization. Employers can require a physical to determine ability to perform specific job functions.
·         Military records: Military records can only be released under very limited circumstances.
·         Educational records: Transcripts, recommendations, disciplinary records, and financial information are confidential and can only be released with consent.

 

Adapted from: http://smallbusiness.findlaw.com/employment-law-and-human-resources/performing-an-employee-background-check.html.

Conclusion

The courts have held that employers do not have a duty to make an inquiry as to a prospective employee’s criminal record—even where it’s known that he will regularly deal with the public. If the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to believe the employee will be reliable and fit for the job, there’s no affirmative duty to investigate the possibility that the applicant has a criminal record, including a check of the national sex offender database.


References

The courts have held that employers do not have a duty to make an inquiry as to a prospective employee’s criminal record—even where it’s known that he will regularly deal with the public. If the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to believe the employee will be reliable and fit for the job, there’s no affirmative duty to investigate the possibility that the applicant has a criminal record, including a check of the national sex offender database.

  1. Pub. L. 109-248, Tit. I, 120 Stat. 590 (2006). Among its many provisions, the Sex Offender Registration and Notification Act instructs states to maintain sex-offender registries that compile an array of information about sex offenders, 42 U.S.C.S. § 16914; to make this information publicly available online, 42 U.S.C.S. § 16918; and to provide a criminal penalty that includes a maximum term of imprisonment that is greater than one year for the failure of a sex offender to comply with the requirements of the subchapter, 42 U.S.C.S. § 16913(e).
  2. National sex offender public website. https://www.nsopw.gov/en?AspxAutoDetectCookieSupport=1. Every state has enacted its own specific laws that determine what information is to be displayed on the public registry website. National sex offender public website, FAQs, https://www.nsopw.gov/en/Home/FAQ#answer-02.
  3. Id. Further, the U.S. Department of Justice does not maintain the sex offender information displayed on NSOPW. All of the information provided through the website is maintained by the separate jurisdictions. Access to that information is controlled by the agency within each jurisdiction responsible for registering sex offenders.
  4. Stephanie Rabiner. Can You Refuse to Hire a Sex Offender? Findlaw (September 11, 2011) http://blogs.findlaw.com/free_enterprise/2011/09/can-you-refuse-to-hire-a-sex-offender.html#sthash.PqF9ivTm.dpuf.
  5. Performing an Employee Background Check, Findlaw (2013) http://smallbusiness.findlaw.com/employment-law-and-human-resources/performing-an-employee-background-check.html.
  6. Christa Elliott, It’s Better to Check, HRO Today, http://www.hrotoday.com/news/talent-acquisition/screening-selection/its-better-to-check/#sthash.JP4hY1CL.dpuf.
  7. Helfers-Beitz v. Degelman, 406 Ill. App. 3d 264, 939 N.E.2d 1087, 1091, 345 Ill. Dec. 907 (Ill. App. Ct. 2010).
  8. Rod M. Fliegel & Justin T. Curley, California’s New Megan’s Law Website: Employers Are Cautioned Not to Make Precipitous Employment Decisions, Littler (January 1, 2005) https://www.littler.com/californias-new-megans-law-website-employers-are-cautioned-not-make-precipitous-employment-decisions.
  9. Id.
  10. Sharon Zaleski, Texas Enacts Law to Protect Texas Employers from Negligent Hiring, Intellicorp (June 25, 2013), https://www.intellicorp.net/marketing/texas-employers/criminal-history/negligent-hiring.aspx.
  11. Fliegel & Curley, supra. Background check companies in California may not report records of conviction (even felonies) that, from the date of disposition, release, or parole, predate the background check report by more than seven years. As a practical matter, the attorney authors state that this may lead to a strange result that an employer may not learn of an old sex offense conviction through the background check process, even though the name of the employee is on the sex offender registry. Id.
  12. Diane Cadrain, Full Disclosure, SHRM (September 1, 2007) https://www.shrm.org/hr-today/news/hr-magazine/pages/0907cadrain.aspx.
  13. Yeboah v. Snapple, Inc., 286 A.D.2d 204, 729 N.Y.S.2d 32, 33 (N.Y. Div. App. 2001) (citing Amendolara v. Macy’s New York, 19 A.D.2d 702, 241 N.Y.S.2d 39, 40 (N.Y. App. Div. 1963)). See Fox Assocs. v. Robert Half Int’l, 334 Ill. App. 3d 90 (Ill. App. Ct. 1st Dist. 2002); Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 761 (Fla. Dist. Ct. App. 1st Dist. 1991); Morse v. Jones, 223 La. 212 (La. 1953).
  14. Yeboah, 729 N.Y.S.2d at 33.
  15. Connes v. Molalla Transport System, Inc., 831 P.2d 1316, 1322 (Colo. 1992).
  16. Id. (Emphasis added). The Court thought this to be an unwieldly obligation “To impose such a requirement would mean that an employer would be obligated to seek out and evaluate official police and perhaps court records from every jurisdiction in which a job applicant had any significant contact.” See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 59 (2d Cir. N.Y. 2004); Valles v. Gen-X Echo B, Inc., 2013 U.S. Dist. LEXIS 155630 (D. Colo. Oct. 8, 2013) (“When adopting negligent hiring as a tort, the Colorado Supreme Court took into account the various considerations discussed above and made clear that an employer’s duty of care does not include searching for and reviewing criminal records, except in special circumstances…”).
  17. Connes v. Molalla Transport System, Inc., 831 P.2d 1316, 1322 (Colo. 1992)
  18. Connes, supra; Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508 (N.J.1982). See Restatement (Second) of Agency § 213 comment d (1958); Nowlin v. Moravian Church in Am., 228 N.C. App. 307, 313 (N.C. Ct. App. 2013).

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