May 5, 1998. Jerrol Woods, a carpet cleaner dispatched by America’s Best Carpet Care, returned to the Rockridge, Calif., home of pediatrician Kerry Spooner-Dean to re-do work after she complained about his initial service.

Her husband Daniel Dean came home later that day to find his wife had been stabbed to death, and Woods was charged with the murder. During court proceedings, it was revealed that Woods had a long criminal history, including several armed-robbery convictions, and America’s Best hadn’t conducted a background check. Woods eventually was sentenced to life in prison without parole, but America’s Best paid a steep price: the jury awarded Daniel Dean $11.5 million, finding the company negligent for not conducting the background screen. The company has not commented on the verdict.

While tragedies such as the Spooner-Dean case thankfully are rare in commercial as well as residential cleaning, other incidents can, and do, happen. For instance, commercial cleaning giant ABM Industries Inc. currently is facing a lawsuit stemming from the February 2000 rape of a janitor by an acting foreman. The assailant pleaded guilty to second-degree rape, but ABM was charged with violating the janitor’s civil rights and creating a hostile work environment. ABM Industries declined comment.

Even the most vigilant defenders of employee rights acknowledge there’s no way to entirely prevent violence or theft in the workplace, but checking an applicant’s employment, criminal, driving and possibly credit backgrounds before letting them into the customer’s building is one way to reduce the risk.

And building owners seem to understand this: In a recent survey of Contracting Profits readers, 50 percent of respondents indicated their customers wanted background checks on cleaning employees. That was the highest-rated employee-related issue in the survey; only company references (76 percent) and proof of insurance coverage (70 percent) were more common customer demands.

But while the survey indicates a customer desire for background checks — and, if asked, most BSCs would say they perform at least some type of check, some of the time — Jeff Bishop has his doubts.

Bishop, administrator of Clean Care Seminars, Dothan, Ala., was an expert witness on service-industry hiring practices in the Spooner-Dean case. And he testified that lack of background checking is a serious problem in the industry.

“Franchises seem to be ahead of independents,” since many franchisers require their owners to do the checks, says Bishop. “But in either case, owners do very few background checks.”

An informal survey of his associates showed that only around 20 percent do background checks on every employee. And the Contracting Profits reader survey shows that the rising cost of these checks is the No. 3 cost concern for BSCs — a bigger concern than equipment and training costs, and only superceded by paper and insurance prices.

Many BSCs only check supervisors, or office employees, but Bishop says any employee with access to customer buildings needs to be cleared no matter the initial cost.

“When sending employees into someone’s home or workplace, there’s a greater burden on the employer to do a criminal background check,” says Fred Steingold, a labor attorney with an independent practice in Ann Arbor, Mich.

What it takes
Conducting a background check can take several forms. One of the simpler, and less expensive, means of assessing an individual’s past is by asking for employment references — and, more importantly, following up.

“We do call prior companies, especially if I recognize any of the names” says Rodney Reams, president and owner of Dukane Contract Services, Batavia, Ill. The problem, he says, is that other companies generally won’t give much information about former employees’ attendance, discipline or other records for fear of getting sued for defamation, but at least they verify employment.

A more involved screening includes a criminal history. For $8, Bishop can run a check of a prospective employee at the county courthouse. For a larger fee, around $40 to $60, BSCs can hire an independent firm to conduct a national check, Bishop adds. Setting up a business relationship with a screening firm or private investigator might help keep those costs down.

About the only time BSCs don’t have to foot the bill is when they clean government contracts, most of which by law require all employees to be cleared. Often, the government will pay for them, Reams points out.

In any case, be sure to obtain permission to conduct a check on future employees. This can be an authorization paragraph on the application, or discussed during an interview.

While some prospective employees might balk at the check and withdraw their applicants, most are willing, Reams says.

A Case Study
Paul Oliviera, president of LP&D Inc., Woburn, Mass., doesn’t take any chances. He has one of the most involved screening procedures in the industry.

Oliviera uses a four-interview procedure. After the first three standard employment interviews, he makes a job offer, contingent upon passing a loss-prevention interview, drug screen and possible background check. Potential supervisors also are told they will undergo a credit check.

In the loss-prevention interview, Oliviera and the applicant discuss criminal record, previous employment, drug use and other potential red flags.

If, during the interview process, any suspicions arise (including if the applicant mentions a prior conviction), Oliviera conducts a background check.

“Any recent shoplifting or theft is the end of the process for that applicant,” he explains. Those convicted of violent or bodily crimes, too, get their conditional job offers rescinded.

Other crimes to watch for, says Bishop, are those of honesty.

“One $8 check revealed 17 prior forgery convictions,” he says. “And this was for someone applying to be a bookkeeper!”

“Of course, you’ve got to take it in context,” Oliviera says. A long-ago shoplifting conviction or other youthful indiscretion will be overlooked if the person’s recent history is solid.

Around 20 to 30 percent of his applicants fail the loss-prevention interview, compared with about 5 percent failing the drug screen.

“We’ve had 120 cleaners in 300 accounts, and we have yet to have one person caught or charged with a crime,” he says.

Over the line
Many states prohibit employers from automatically disqualifying convicted felons from employment; instead, managers only may consider relevant convictions. (The language varies from statute to statute; consult an employment lawyer in your state for exact guidance.)

Deciding what constitutes a relevant conviction is a bit of a gray area, but since a janitor has many opportunities to commit a crime on the job, try to be as vigilant as possible, Steingold says.

“A lot of crimes can be relevant,” he explains. “If you’re sending people into a building, disqualify them if they have a history of robbery or crimes against one’s person,” such as assault.

Unfortunately, the law doesn’t always see it that way. In a much publicized 1998 Madison, Wis. case, Gerald Turner, convicted in 1973 of slaying a 9-year-old girl, applied for a job with Waste Management Inc., sorting materials for recycling. Waste Management argued that it did not have to hire Turner because at the plant, Turner would have access to potentially dangerous materials. Also, elementary school students and Scout groups tour the facility.

However, the state Equal Rights commission found the employer discriminated against Turner because the job was not substantially connected to Turner’s prior crime. Eventually, Waste Management settled with Turner for an undisclosed sum in exchange for him dropping his complaint.

Although the State Assembly rushed to change the law, the legal fees alone in such a case could bankrupt a small company. In that case, it’s best to do what you can under state laws, says Steingold.

“You do have a reasonable defense,” he says. “If you’re sued for liability because your employee commits a crime, you can say, ‘We tried, but under the law we didn’t have a choice.’”

While that defense won’t necessarily ensure you will win the case, it may help a judge or jury understand your position and reduce the award.

Also, there is a question as to whether using criminal history has a disparate impact on who you hire. The Civil Rights Act of 1991 indicates that even if you don’t set out to discriminate against a protected class of people, you can be held liable if one of your policies incidentally excludes a certain group of people.

However, there are exceptions: If the policy is considered essential to the job, you can discriminate against people who don’t fit the policy.

“It’s a question of whether you use the screening for all jobs,” says Steingold. If you screen everyone, and disqualify applicants based on standardized and relevant criteria, you have a good defense.

Of course, there still is the question of time and expense. A company with 200 employees and 50 percent turnover would spend anywhere from $800 to $6,000 per year on background checks, using Bishop’s figures, and that doesn’t even include checks performed on people who eventually are not hired.

Also, the turn-around time for background checks can vary. While some state agencies can process requests in a matter of hours, others take a few days to a few weeks. In the meantime, Reams suggests hiring the waiting applicant as a trainee in a heavily supervised facility, then “promoting” them to regular employee once the check is complete.

In spite of the drawbacks, experts agree background checks can be well worth it, in crimes prevented as well as in peace-of-mind.

“Your company’s reputation relies on front-line workers,” Oliviera says. “If you’re not absolutely sure someone’s honest, ethical and trustworthy, don’t put that person on the front line.”




POSTED ON: 1/1/2001