Friday, September 08, 2006

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.

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.


At 8:13 AM, Anonymous Anonymous said...

Great article. My school district has concerns in this area and this gives us some direction and some guidelines to follow. Thank you!

At 8:53 AM, Anonymous Anonymous said...

isn't the real issue here is that hiring illegal aliens is in fact "illegal"?

At 11:30 AM, Anonymous Anonymous said...

?How can we(our school)be held responsible for someone that is not even our employee

At 3:43 PM, Anonymous Anonymous said...

I do have a comment on that yes safer practices do need
to be sought but I don't thnk that this janitor being an illegal immigrant
has to do with the criminal activity. The United States has enough citizens
that are criminals which should be announced more often than targeting
illegal immigrants. The prison system here in the United States has an
in/out system that welcomes prisoners to continue their practices and 99% of
them are American Citizens. This is a very touchy subject for me and I
believe comments of when an illegal immigrant commiting a crime is just
taken overboard compared to when a United States American citizen commits a
crime, I don't see the difference. A crime is a crime regardless of who
commits it.

At 3:46 PM, Blogger Bill Dolphin said...

Reply to "a crime is a crime"

Thank you for your recent comments on the Blog article: "Are your service providers placing your children or employees at risk?" Illegal immigration is a highly emotional issue with the American public and your comments are welcomed and appreciated. The main point of the article went to the potential liability an employer faces when they knowingly hire illegal aliens. Although government action against employers may include stiff fines as well as incarceration, the civil penalties for hiring unscreened, undocumented workers with unknown criminal pasts is even more frightening. Truly, the timing of this unfortunate case couldn't have been more fortuitous for a plaintiff's attorney given the coincidence of public sentiment against illegal immigration and the recent reporting of violent crimes by illegal aliens in the media.

In the article I was careful to point out that the evidence to which some criminologists point to in support their belief that illegal aliens commit a preponderance of the crimes in certain areas is anecdotal. However, some pundits fervently believe otherwise. They point to statistics such as:

1) In Los Angeles, 95 percent of all outstanding warrants for homicide (which total 1,200 to 1,500) target illegal aliens. Up to two-thirds of all fugitive felony warrants (17,000) are for illegal aliens.
2) Lou Dobbs recently reported that 33 percent of our prison population is now comprised of non-citizens.
3) Immigrants represent 25% federal prison population
4) illegal aliens are guilty of 1 million sex crimes a year. Based on a one-year in-depth study, the Violent Crimes Institute in Atlanta estimates there are about 240,000 illegal immigrant sex offenders in the United States who have had an average of four victims each

With these kind of statistics bantered around in the press it is easy to understand why public sentiment against illegal immigration has peaked and why all companies must be certain that all employees are properly screened.

Best Regards and Stay Safe,

Bill Dolphin

At 3:26 PM, Anonymous Anonymous said...

The last blogger said it doesn't matter if the criminal is illegal or not. I disagree.

How disrespectful to Americans when you come into our country, uninvited and break "our" laws>

Why should hard working tax payers in the US pay for an illegal to be procecuted and pay for their upkeep in prison. They need to be held in the prison in the country where they are citizens.

They are "illegal", thus breaking the law. We hear about the horrors or jails or prisons in other parts of the world. How do the countries where theses illegals come from treat US citizens who break the law in their country?

I know illegals who are in this country and taking "good paying" jobs from American citizens who are looking for work. They falsified documents and are not being throughly checked out by their employer. I think the employers who knowlingly hire illegals should be prosecuted and it would reduce the number of illegals finding employment. Get to the back of the line and apply for citizenship. Don't cut in line and take jobs from legal applicants for citizenship. Cutting in line is a little piggish.


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