Are your service providers placing your children or employees at risk?
Recently, a custodian at Saguaro High School in Scottsdale Arizona was arrested for allegedly raping a 14 year old student. Immigration officials have now said that the custodian, Roberto Lemus-Retana, was an illegal immigrant and was not authorized to work in the United States. Lemus-Retana was employed by a private janitorial firm that supplies about 130 workers to the Scottsdale School District.
Sadly, school districts have helped form negligent hiring law and this incident has the potential to develop into a landmark case. A civil suit of one form or another is inevitable. Here, the flames will be fanned by the fact that the employment of illegal workers is a very emotional issue that has found its place in the national spotlight. One can argue that much of the data that seems to support the contention that illegal aliens are more likely to be involved in criminal activity is anecdotal. Notwithstanding, checking the criminal records of illegal workers is virtually impossible. The vast majority of service providers who knowingly hire illegal workers don’t even bother to check them out. Criminal record checks on workers from Mexico and other parts of the globe are, and always have been of questionable accuracy. You can bet that if an illegal worker commits a violent crime against another employee, a student, or customer, your hiring procedures will be closely examined. Expect enhanced liability and potential criminal penalties.
Going forward, simply requiring your business partners and vendors to certify that they conduct background checks on their employees will not be enough. Due-diligence will require that entities contracting for outsourced employees who will be in close proximity to children and other “vulnerable” persons know for sure that proper screening procedures are being followed.
Many school districts or other employers may want to consider screening the contract employees themselves. You can screen your service provider’s employee by having each contract employee complete a special contractor/vendor authorization form. Your service provider may allow you to bill back the cost of the screening. Screening the employees yourself should be manageable if the employee turnover is low. If administering the screening process yourself is not manageable, we recommend the following:
1) Meet with your business partner and provide them with your company’s employment screening standards. Document the standards and make them a part of your business contract or agreement.
Sadly, school districts have helped form negligent hiring law and this incident has the potential to develop into a landmark case. A civil suit of one form or another is inevitable. Here, the flames will be fanned by the fact that the employment of illegal workers is a very emotional issue that has found its place in the national spotlight. One can argue that much of the data that seems to support the contention that illegal aliens are more likely to be involved in criminal activity is anecdotal. Notwithstanding, checking the criminal records of illegal workers is virtually impossible. The vast majority of service providers who knowingly hire illegal workers don’t even bother to check them out. Criminal record checks on workers from Mexico and other parts of the globe are, and always have been of questionable accuracy. You can bet that if an illegal worker commits a violent crime against another employee, a student, or customer, your hiring procedures will be closely examined. Expect enhanced liability and potential criminal penalties.
Going forward, simply requiring your business partners and vendors to certify that they conduct background checks on their employees will not be enough. Due-diligence will require that entities contracting for outsourced employees who will be in close proximity to children and other “vulnerable” persons know for sure that proper screening procedures are being followed.
Many school districts or other employers may want to consider screening the contract employees themselves. You can screen your service provider’s employee by having each contract employee complete a special contractor/vendor authorization form. Your service provider may allow you to bill back the cost of the screening. Screening the employees yourself should be manageable if the employee turnover is low. If administering the screening process yourself is not manageable, we recommend the following:
1) Meet with your business partner and provide them with your company’s employment screening standards. Document the standards and make them a part of your business contract or agreement.
2) Arrange to meet with your business partner and the background screening firm that will be handling the screenings. Make sure you are all on the same page with regard to the screening standards and process (i.e. social search; felony & misdemeanors; at least 7 years back; no database searches; etc.)
3) Discuss what procedures will be used to reduce the risk of hiring illegal workers (e.g. SAVE Program; verify SSN w/Social Security Administration post job offer; etc.).
4) Ask that your service provider make the results of the background check for any person who will be working on your premises available to you on request. Make this a formal part of your agreement. Review all results regularly or audit results on a random periodic basis.
Working with your service provider in this area will be a process of negotiation and agreement. Clearly, it is in your best interest to develop a roster of contract employees who will be regular workers and not a staff that changes every day or two. Administering a background screening program is easier given a more stable staff. Additionally, you will get better service from your provider under these circumstances. If your service provider is uncooperative in your efforts to ensure the quality and consistency of the background checks done on contract employees, consider finding a contractor who will work with you. Your due-diligence in this important area will reduce the likelihood that you will have to share in your service provider’s negligence should an incident occur.
Working with your service provider in this area will be a process of negotiation and agreement. Clearly, it is in your best interest to develop a roster of contract employees who will be regular workers and not a staff that changes every day or two. Administering a background screening program is easier given a more stable staff. Additionally, you will get better service from your provider under these circumstances. If your service provider is uncooperative in your efforts to ensure the quality and consistency of the background checks done on contract employees, consider finding a contractor who will work with you. Your due-diligence in this important area will reduce the likelihood that you will have to share in your service provider’s negligence should an incident occur.
posted by Bill Dolphin @ 10:00 AM
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