An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

However, the constitutional right to privacy is not absolute. Rather, an individual’s right to privacy is weighed against an employer’s interest in disclosure. Schools should review their background check procedure to ensure that it does not violate an applicant’s privacy rights. Schools should also verify that all inquiries are justified by some legitimate business reason. In particular, questions should be tailored to determine if the applicant can perform the essential duties of the job and will otherwise be a quality employee. 2. I NQUIRIES A BOUT A N A PPLICANT ’ S P HYSICAL A ND M ENTAL C ONDITIONS Disability discrimination laws and related regulations prohibit schools from asking applicants, former employers, or anyone else if the candidate has a disability or medical condition or the severity of any known condition. Inquiries about an applicant’s medical condition generally may not be made until after a conditional offer of employment is made, i.e. not until after a background check is completed. Thus, schools should specifically tailor inquiries to determine a job candidate’s capabilities without seeking information about the disability or condition. 3. I NQUIRIES A BOUT A N A PPLICANT ’ S C RIMINAL H ISTORY Certain criminal convictions prevent schools from hiring individuals; however, it is important for California employers to be aware of the explicit prohibitions that exist with regard to utilizing certain criminal records and other forms of criminal history in hiring decisions. See section 3.B above and section 4.G below. 4. P OTENTIAL L IABILITY F OR F AILURE T O C ONDUCT B ACKGROUND C HECK Conducting a reasonable background check is necessary to protect against claims such as negligent hiring. 124 For example, one court found a school negligent in failing to conduct a sufficient background check on prospective employees and implement policies and procedures addressing inappropriate conduct between teachers and students. When a teacher later harmed a student, the school was liable for negligently hiring that employee. 125 LCW Practice Advisor Schools should also have policies in place to ensure that volunteers who will be alone with children, or who supervise young children, undergo a background check. C. I NITIATING A B ACKGROUND C HECK Employers must take steps to initiate background checks whether the applicant submits an application or is recruited for a job position. 1. E NSURE T HAT T HE A PPLICATION I S C OMPLETE Before conducting a background check, a school should obtain key information about the candidate through the job application. The school should review the application to ensure that the applicant has provided the following:

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 55