When clients order a background screening report requesting that we verify current employment for a potential new hire, we, as a courtesy, reconfirm with the client that we have the applicant’s permission to do so. There is potential liability for contacting an employer who has no idea that one of their current employees is being screened for another job.
In the case of Shawn Smith vs. Waverly Partners, LLC et. al., 2011 U.S. Dist., the defendant, Waverly Partners LLC, contacted Plaintiff regarding a potential general counsel position with the firm. Over the next few weeks, Waverly Partners decided to conduct a background check on Plaintiff. All appropriate forms and notices were sent to Plaintiff in compliance with the FCRA, which included authorization to verify previous employers. At no time did Plaintiff give authorization to verify her current employment with Cato.
Waverly contracted with Allied Barton to perform the employment background check, and informed Plaintiff that “no references would be contacted unless she was the final candidate for the job, and then, only the specific individuals listed as personal references would be contacted.”
As part of Allied Barton’s employment verification process, they provided Cato with a copy of Plaintiff’s authorization form. As a result, Plaintiff was fired from Cato. Subsequently, Waverley also informed Plaintiff that she was not selected for the general counsel position.