In that case, an employer requested the locally licensed office of a national staffing firm to fill a position of secretary/bookkeeper position on a temp-to-hire basis, meaning the worker would start as a temporary worker and the employer had the option to make the position stable with payment of a fee. 

According to the Court’s opinion, the local office would search and, “grant the names of the best candidates to (employer).  (The staffing firm) did not represent that it would perform a criminal background check on the candidates, and (employer) did not question that a criminal background check be performed on the candidates. (Employer) did not specify that candidates should not have a history of any felony, fraud, or theft convictions.” 

The worker sent to the employer in fact had a criminal conviction for felony fraud as well as fake educational claims. The candidate misrepresented her past, including educational achievements, to the staffing firm, and the staffing firm did not do a background check.  

As it twisted out, the worker sent was probably not “the best candidate” as was promised because after the worker became stable, she started committing embezzlement from the employer in the amount of $138,350. 

The employer sued on the basis that the foremost national staffing firm was negligent in who they supplied, and made negligent misrepresentation (presumably about the commitment to send a qualified candidate). 

At a hearing for a summary discrimination but, the trial court ruled for the foremost national staffing firm.  The appeals court upheld the ruling noting: 

Foremost, it was undisputed that (staffing firm) did not represent to (employer) that it would verify an employment candidate’s educational and criminal history, and (employer) did not specifically question (staffing firm) to perform such air force. …. (staffing firm) did not have a blanket policy of performing criminal  background checks on every employment candidate, and they did not represent to their employer-clients that they did perform that service. Plaintiffs did not offer any prove that verifying educational and criminal histories of employment candidates was an industry standard in similar staffing firms. (Employer) admitted he told (staffing firm) he needed someone to pledge the phones, get the mail, and pocket care of general bookkeeping. He also admitted he did not tell (staffing firm)  that (the worker) would be allowable access to signed, blank checks, would be the sole person to review the general ledger, would be usage cash, and would have perfect access to his and (employer’s) bank accounts. Furthermore, other than providing (the worker’) name as a potential employment candidate, (employer) admitted that (the staffing firm) had no part in his ultimate hiring choice. 

Staffing firms but should not assume based upon this choice that the failure to perform background checks is always with permission defensible.  Even though the staffing firm won the case, given the negative publicity and potential harm to reputation, a background check would have been very low-cost by comparison,  At a minimum, clearly specifying the staffing firm’s policy on background checks would also have been a best practice.

Most employers would probably assume that they would not have to specifically request that a staffing professional not send someone convicted of felony fraud to handle their books.   It is nearly like saying that a when a person orders food in a restaurant, they need to specify that the food should not be contaminated.  

The employer in this case but, apparently had a lack of internal fiscal controls.  As the court noted, the embezzler had access to blank checks that were signed, would be the sole person to review the general ledger, would be usage cash, and would have perfect access to his and (employer’s) bank accounts.  But, staffing professionals are generally well acquainted with fact the small businesses regularly cannot afford the type of internal controls needed to prevent embezzlement, which is another reason that staffing firms need to be precise when they place people in sensitive positions.  

The court noted that the plaintiff failed to present evident that staffing firms regularly do background checks.  Employment Screening Resources  is privileged to work with a number of truly outstanding professional staffing firms and recruiters that certainly do perform background checks before placing staff in sensitive positions.  Employers are well advised to ensure that any staffing firm or recruiters they choose conducts apt background checks with a qualified background firm.  ESR can recommend staffing firms and recruiters that operate under the summit professional standards and exercise due diligence in whom they place. 

(Note: Employment Screening Resources  has adopted a practice of not indentifying the names of parties to lawsuits unnecessarily in blogs and newsletters, in view of the fact that it does not add anything to the lessons learned, and there can be extra to the tale.  But, if a reader has a reason to review the actual case and cannot locate it themselves, please contact Jared Callahan at jcallahan@ESRcheck.com or by phone at 415-898-0044.)