As a photography business owner, you may think employee background checks are only for much bigger companies, but you would be wrong. You could be vulnerable to potential lawsuits or in violation of federal and/or state laws if you don’t understand how to check prospective employees’ backgrounds and conduct them properly. Even if you’re just hiring a short-term intern or part-time “gofer” or second photographer, a background check will help you confirm that the person can be trusted with expensive equipment and work safely within a photography environment often filled with cables, light stands, etc.
A negligent hiring lawsuit is one of the legal traps that could be waiting for you. For example, you fail to conduct a background check of a new employee that would have revealed a record of violent behavior in the workplace. If this employee attacks another employee, a model or a client, then you could be sued for endangering the victim and others, although you had no knowledge of the new employee’s violent past.
A similar scenario is hiring a new employee, whose only reason for seeking a job at your business is to retaliate in some manner because he or she thinks your company is responsible for some injustice. It could be a relative of a wedding customer, who thought you were rude during the reception or made him or her look ugly in one of the wedding photos. Not only could him or her destroy equipment and relationships with your clients, but also threaten or physically harm your other employees, or clients.
An employee background check will also eliminate instances when you must fire a new employee shortly after hiring him or her because they “expanded” the facts on a résumé or lied about his or her skill set.
You should also be aware that although background checks are not required of all employees by federal or state law, they can be required if employees will be interacting with children, the infirmed and elderly. If your photography business is primarily private and/or school portraits of children, then these laws may apply to you. The cost of the attorney’s time is much less than a lawsuit judgment against you if you unknowingly hired a child predator, who commits a crime during his or her duties as your employee.
Based on relatively recent court cases, you must be very careful about using any criminal records discovered during an employee background check. Using that information too broadly in your determination to hire or not hire a prospective employee may provide him or her with grounds to sue you under federal statues. That is why it is extremely important to have very accurate information, so you can distinguish between arrests and convictions. Someone can be arrested once or several times for different crimes, but never convicted. Under these circumstances, you have the right to ask the potential employee to explain the details of this information, so you can make a clear and fair decision about his or her fitness to work for your company.
Nature and gravity of the offense or offenses.
Time that has passed since the conviction and/or completion of the sentence.
Nature of the job held or sought.
Other protective measures you should consider as an employer include:
Keeping excellent records of interviews, résumés and all other documentations related to the hiring of anyone, especially if criminal information is involved in your determination.
Developing a background check statement with the assistance of your attorney that appears on all employment applications or in other documentation made available to potential employees.
Meeting with your attorney to create an employment policy and all the necessary documentation, so you’re in compliance with all federal and state laws, before you hire your first employee, even if you’re not currently thinking of doing so.
Even then, according to a federal Labor Department commission, it is illegal to deny employment strictly on criminal convictions unless the employer can justify a “business necessity,” based on three factors:
State laws also differ when it comes to criminal records and background checks. Some states forbid employers seeking criminal information during employee background checks or asking employees for this information. Other states permit it; so a business owner, for example, can protect himself or herself from hiring a person as a bookkeeper who has been convicted of embezzling.
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