Tread carefully when checking civil litigation history

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Tread carefully when checking civil litigation historyChecking publicly available civil litigation information may ensure organisations safeguard themselves against hiring people found negligent or liable by a civil court, but involves a whole host of limitations and risks.

Last year, Queensland Health was held to account over having employed an IT manager for five years who had previously been the head of an internet services company which was ordered to pay $210,000 worth of damages for using pirated software in 2001. (Related article: Disclosure of civil law breaches in question). A check of litigation records may have allowed it to avoid getting into this difficult situation.

However, checks of civil proceedings may identify cases that would be considered a ‘spent conviction’ in a criminal history search, and therefore cannot be considered by an employer.

Background screening firm Verify said court record checks are in their infancy and databases only list more high-profile cases, writs, summons, things such as credit defaults, and cases not marked as private.

“Court records are not as foolproof as we’d like them to be and need to be strengthened with other searches. There is no central database for court record information and each court processes information differently,” manager Hosay Mangal from Verify said.

According to pre-employment screening firm First Advantage, employers need to be aware that some findings may be entirely personal matters and have no bearing on someone’s potential success as an employee.

As is the case with criminal history screening, an employee’s full background must be considered in the context of the essential requirements of a role, and any findings should be discussed with the candidate in question to determine if it is relevant at all to the decision-making process.

“If civil litigation checks are sought by an employer for a specific purpose, it should be made clear to the candidate and considered as part of an extensive background search,” First Advantage stated.

As an alternative effective measure, global media searches which span country and language barriers can be useful in providing articles related to any litigation, and are usually easier to understand and more focused than a civil litigation search.

Verify commented that while global media searches can be an effective search mechanism, there may be a million ‘John Smith’s’ for example, and the search results must be carefully itemised and cross-referenced against other data the candidate has provided, such as birth date and qualification.

How to carry out a background check:
 

  • There are many pre-employment screening firms who carry out background verification. If civil litigation checks are sought by an employer for a specific purpose, it should be made clear to the candidate and considered as part of an extensive background search.

  • The industry has moved away from offering package deals and search functions should generally be matched to the role being filled. Verify can conduct a criminal history check, global media search and qualification check for $195.

  • First Advantage says its global media search can provide results from up to 31,000 unique sources, from over 200 countries and 26 languages. It is highly likely such a search would have provided a number of articles relevant to the Queensland Health example above. The company says it can conduct background checks “for the cost of a dinner (not McDonald’s”).

  • The degree to which a candidate is background checked should generally be weighed against the level of seniority, position and the sensitivity of task they will perform.

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