The Duty Of Care Doctrine In The Workplace
When someone is vulnerable, a person has a duty to care to their needs. This is what the Duty of Care Doctrine says. Going deeper into what it really means, Bill Stierle and Jonathan Kraut share what you need to know to comply and provide protection for the people around you. They further discuss the Duty of Care Doctrine in relation to the duties in the workplace, detailing information and due diligence that is necessary to support different people working. They provide examples to further discuss its impact—from criminal charges to prosecution and more. Join Bill and Jonathan as they impart their expertise in care doctrine and laws.
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The Duty Of Care Doctrine In The Workplace
The Value Of Knowing What Is The Duty Of Care Doctrine When Conducting A Background Check
Welcome to the Net Check Investigation with Jonathan Kraut. Jonathan, how are you doing? I’m looking forward to this next conversation regarding investigations and how a private investigator works to find out information that’s necessary to make decisions in the business world.
I’m doing good. It’s a great topic and I’m very happy to share that with everybody.
I know that this topic is important because when we take a look at the impact of Duty of Care Doctrine, there are some details and some information that people need to know and regards to be compliant as well as to provide protection for the people around them. Could you tell me a little bit about the impact of Duty of Care Doctrine?
A lot of attorneys are not aware of it, depending on their specialty. I’m not an attorney but luckily, we have good ones that we work with so they can take care of it. The Duty of Care Doctrine says that a person has a duty of care to attend to someone’s needs, especially if that person is vulnerable in any way. That’s essentially the bottom line. If somebody is vulnerable like elderly, children, someone who has autism or a cognitive issue, they have Alzheimer’s, there are special things that an employer or caregiver or person caring for them needs to go through or needs to know.
I feel delighted about going through this. I know that as a licensed California private investigator, your license number is 21529, and it is important to have that distinction so that people know that you’re meeting that standard of quality and hitting the regulation.
We want to make sure that our evidence is admissible in court. It would be nice to have a friend help you out or a family member, but it’s not the same. Being a state licensed agency, we have a higher standard and also, we can assure that our work is quality and is what the court wants.
It’s important to hit the letter of the law in regards to this, as well as having a support person like yourself and your agents to be able to sit on the stand and give testimony that is being accepted and verified. Isn’t that correct?
That’s right. If it’s not accepted and verified, then why do we do it?
That’s a good thing that we want to have that next level of safety and protection available. Why don’t you take us through a little bit of this? If we got this Duty of Care Doctrine, a court principal that offers safeguards, talk to us a little bit about how this is defined and what is the required extra consideration.
There are certain populations that require extra care. It is for those who are vulnerable and unable to make decisions for themselves, either because of their age, position or situation. The courts require a special consideration beyond what a normal person would expect.
It sounds like it applies to a whole range of people.
It does and it affects employers, babysitters, nannies, caregivers, others that work in a role where their job is to work with those who need extra attention.A due diligence search is a higher, more thorough level of checking everything. Click To Tweet
Even with parents and children of elderly people too, I guess.
For example, with my parents when they were alive in their 90s, we had a caregiver and the caregiver had possibly some issues. We did a Duty of Care Doctrines search. We found out some things before we hired them. Nothing showed up obvious, but there were little hints. By focusing on those hints, within a week we let her go. We already could tell something was going on and there was no reason to take a chance.
This allows the person to do their own due diligence to make sure that the caregiver is safe for the elderly person.
It can be for that and it could be for children. Let’s go with the protected classes. Children who are newborn to the age of seventeen. Why seventeen? It’s because eighteen, you’re an adult, at least in California. Anytime there’s a child involved, the Duty of Care Doctrine applies. The elderly, if it’s considered an elderly person with a disability like their walking, their cognitive function, their logic, their setting where they’re isolated, all those would allow that person to apply as an elderly person.
There’s also a physically and cognitively impaired. There are some guidelines for them to also.
Even someone who is wheelchair-bound is protected. Someone with cognitive issues like autism, Alzheimer’s, dementia, schizophrenics and depressants, they should expect or do special consideration.
It sounds like the law does a good job of trying to cover these various different classes.
The challenge is whether people act upon that or not. We’re hoping as of this session, the audience will know and you’ll know that we should do extra things. Other people can become vulnerable, even if someone is hospitalized. Let’s say a woman has a baby and for the next two or three days she is incapacitated or with the baby. During that period, special consideration should be given to her and the child.
Tell me a little bit about the specific duties in the workplace. What are some things that go into that?
The Duty of Care Doctrine also applies to those who work with drugs or pharmaceuticals. You don’t want a drug addict to be working for pharmacy or in a hospital. Cashiers and those handling $10,000 or more in cash per week are part of the Duty of Care Doctrine. Those who use credit cards that have access to credit card information, bank account information and private information like social security numbers, dates of birth, home addresses, phone numbers. A lot of people in the workforce should be searched and examined under this doctrine.
This level of protection is about how the law is looking to provide support for different people in the workplace, so others can’t take advantage of people.
The first challenge is to know that these individuals are in a different class. The second challenge is to do something about it which we’ll talk about in a second. The third challenge is to keep monitoring and observing to make sure that everything is fine.
Does not exclude or excuse? Tell us a little bit about this.
One issue that disturbs me is that a lot of nonprofits end up in trouble because they think that a volunteer or a person working at a nonprofit is somehow excluded from being examined, investigated or screened. Especially if they have credit card information or access to cash. You’ve heard all kinds of terrible stories about nuns swindling from their church and nonprofit volunteers embezzling funds. A lot of this could be stopped before it starts.
The main thing here to get ahold of is that we want to take a look at these volunteers. We want to take a look at family members and relatives because they’re a part of having awareness about how these different impacts are going to take place.
Because Billy is a cousin, you know he’s a drug addict and he’s desperate for money, doesn’t mean that he won’t take advantage of your family or someone in your family who is less than fully cognizant or somewhat impaired. Even family members, you cannot excuse them. You can search yourself, but I think you’d know what you’re like. People who have access, you want to make sure there’s nothing in their record that would indicate any tendency of misconduct or being less than a perfect person.
Some mindfulness around that could make a big difference. Even teachers, nannies and babysitters over eighteen are included in this.
A babysitter at seventeen usually doesn’t have a criminal record. There might be a civil record, although it’s hard to use that in court as a minor, but just because someone’s a teacher, nanny, babysitter or report that they are, does not mean that they don’t need to be looked at.
Key company officials, tell me a little bit more about that.
The Duty of Care Doctrine will apply to anyone with a lot of control i.e. a CEO, a Chief Operating Officer, or CFO, Chief Financial Officer, they have access to employee’s records. Their socials, their dates of birth, their bank information, their credit card, who knows what they have. This would apply to somebody with control even to the payroll clerk and the accountant. There should be extra measures taken when there’s sensitive information like financial information available.
The thing that strikes me here is that there’s a relationship with integrity, trust and certainty with these different people that we or a business comes in contact with.
You want to make sure that you’re trusting the right people.
The payroll clerk and the bookkeeper that has that information that’s handy to them, you’ve got to have that level of integrity and trust that’s there or otherwise it doesn’t go so well. What are some of the specific applications that go into this? Tell us a little bit more about this.
The first thing you want to do is identify if the Duty of Care Doctrine applies and you would conduct a different background check or employment screening search for these people. It’s not like a regular, “I want to be a mechanic or work on a roof.” It’s somebody in a role that’s more specific. You want to make sure that you do the right search from the beginning.When you hire somebody, you want to have authorization to recheck them periodically. Click To Tweet
What’s the range of due diligence that needs to take place here?
The Duty of Care Doctrine, you go back further. In some cases, you do what’s called a due diligence search, which is a higher form of the Duty of Care Doctrine search. You’re looking for more.
Tell me a little bit about the criminal charges. Where does that show up in this?
In some positions, a criminal or conviction may or may not be relevant. For example, if I have an office clerk and I had a DUI a few years ago, I don’t drive a company car, it’s probably not that important. It doesn’t relate to work. I’ve owned up to my misconduct and I said, “I’m good.” Sometimes, let’s say you have 20 or 30 allegations that are still in the system that either haven’t been proven or were downgraded to a misdemeanor from a felony, but you see this constant pattern of misconduct. Even if there were no convictions, you are allowed to use that to evaluate someone’s history or performance.
There’s a criminal charge and whether or not it’s been sentenced, but also when do you consider a civil penalty or judgment? When does that come into play?
Some civil issues you think should be criminal, but they’re not. For example, domestic violence, restraining orders, harassment, stalking are sometimes classified as civil cases and not as criminal. You want to look at the civil and domestic violence and family law activity in their record as well.
How about the medical field for people applying to jobs? How does that work?
It’s not a due diligence search, but it’s a higher level of search where someone handling pharmaceuticals, around drugs, maybe cash and private medical information. There are different kinds of searches that you do for them that are different from any other group of people.
The thing that’s striking me a little bit is the awareness of the range of things that you as a private investigator go through to make sure that you’re turning over the right rocks to find out where the thing is being hidden.
Every day is fun because every day is different. We never have two cases or two clients alike. It keeps it interesting and it keeps us sharp because each assignment is like a new challenge.
It sounds like this whole thing regarding background checks and employment screening then comes to the forefront.
I wanted to go into each of these categories a little bit more in detail. Typically, searches go back seven years for a standard background check, seven years from the end of any sentence or probation. We go back 10 to 12 years to see if there’s anything that might apply. The Duty of Care Doctrine searches usually go back fifteen years or more. There’s actually no expiration date. If we find anything 30 years ago that normally we wouldn’t report under the Duty of Care Doctrine, we probably would. There’s no limit, but usually a fifteen-year search is typical.
You as a private investigator are also looking for this civil and conduct search.
We’re looking for orders of protection, violations like that, even why is one issue. Stalking would be civil, not criminal. It could be criminal, but civil. Harassment, domestic violence, domestic assault, abuse, all that could be kept in the civil system.
With the due diligence searches, tell us a little bit more about how you pursue this.
Due diligence search means looking for everything, everywhere. We’re talking traffic tickets, bankruptcy, liens and judgments. We’re trying to find anything that we can find in the public system that would indicate anything out of the ordinary or anything that would alert us.
I’m sure there are all different attributes that you’re looking for.
We want to help develop an idea about their character, their history, the person’s mindset. What habits are we worried about? Traveling overseas every two weeks with a lot of money is bizarre. Do they have vulnerabilities? It’s like doing a background check for the federal government for a secret or top secret clearance. You’re looking at anything that would be an indication of vulnerability of that person.
If anything, that’s exposed with the person. It looks like there are all kinds of ways that this is going to apply to businesses.
Let’s say you want to form a business partnership, you want to bring in a partner or you want to do a deal with somebody. That’s when you’d use a due diligence search. While the Duty of Care Doctrine applies, it’s just a higher and more thorough level of checking everything. We would check property records, foreclosures, are they paying child support, are they defaulting on their child support, things like that.
It makes a big difference because all these different people are going to apply to it. It’s caregivers, medical staff and childcare. Is there any stories that you have around this?
It may apply depending on the circumstance, to some caregivers, medical staff and child care, especially if they have access to money or funds. I would do a typical Duty of Care Doctrine search for a babysitter. It means going back fifteen or twenty years and looking for things that would be of concern. I wouldn’t check their traffic record unless they’re driving. I wouldn’t check to see if they own property or not. You don’t want someone who is vulnerable. Let’s say, somebody who’s running a large company who is in desperate need of cash because they have three houses and they’re all in foreclosure. You don’t want to give them the keys to the register and say, “Take whatever money you want.”
All these different stones or areas to look underneath, it looks like a quite a list here.
Unfortunately, even into many years as an investigator, we know where to look and it’s efficient, quick and inexpensive that we do it. It took a lot of years of training and practice to know what stones to turn over, what doors to open and how to get information. I don’t admire someone trying to do this on their own. Not only will they not know if they were thorough because they may have never done it before, but they’re not going to get any cooperation from the courts and from the data systems. A lot of information that we acquire is private and confidential. Only the police, credit bureaus and investigators can see it. That makes it a lot faster for us to do and harder for you to do.Good decisions start with great information. Click To Tweet
It’s your information, but you can’t even access it because you don’t have the right license and the right access.
You don’t know what the credit bureaus are saying about you. Believe it or not, even though you get a free credit report every year, it doesn’t always tell you everything.
Periodic rescreening is required. Tell us a little bit about this.
Typically, you want to rescreen your employees every two years. Under the Duty of Care Doctrine, it’s recommended every year. That’s because you cannot miss something that might show up. A terrible example is there was a male nurse who was arrested for stealing opioids after he was hired. We don’t know when he became addicted, but they didn’t rescreen him. Four or five years down the road, he stole millions of dollars of drugs. They finally caught him and all that damage was done. What he was doing was taking drugs from patients. He was in the surgical room. He sometimes would take drugs that were on the IV. He would replace it with the saline solution, shoot up in the bathroom and then put whatever was drugs left back in the person while having surgery. They could have caught that long time ago had they been checking every year. He had a drug conviction history that wasn’t there when he was hired.
It’s a big difference to be able to check and double check the system so that the safety is where it needs to be.
When you hire somebody in their situation, you want to have authorization to recheck them periodically. You’ve got to treat everybody the same so that once they’re onboard, they don’t have to worry about it. You go back and recheck every year and see if anything new shows up. I’ll say that 3% or 4% of those that we recheck, we will find something new.
This is a big thing because when you look at criminal charges and sentencing, you want to be able to get ahold of the information that’s needed. That’s a big part of it. What’s this whole thing about prosecution? We’ll consider if any victims were in vulnerable state. What is this part?
If a crime is committed against a normal person, there’s a guideline for the court. If the person was vulnerable or incapacitated, those penalties can be compounded. Sentences can be increased because someone took advantage of somebody who was protected or should be protected. I wish the courts would do that more. Sometimes they don’t differentiate, but they should. Maybe getting the word out will help.
That’s a big part of doing shows like this. It’s to get the information out so it can create the awareness inside the environment about what employers should do and how individuals best protect themselves in regard to vulnerability. Employers may be charged for ignoring special consideration for the protected and vulnerable. Isn’t that correct?
Yeah, an example is we had a caregiving company who ran an instant background check online, which is not valid or complete. They never checked for civil records, which includes elder abuse and child abuse. There were documented cases of elder abuse in the civil system in several different states. This person was moving from state to state, and people are checking their own state, not where they came from. That employer was held responsible for the embezzlement, the fraud, the misconduct, the stealing, the thievery of the caregiver who robbed this old woman blind. They took her car, changed the title of her property and took her bank accounts. The caregiver had done this before in other states, but because there was nothing in the instant search and it was criminal only, the court came down on the employer, in addition to the individual who was incarcerated. Hopefully, it’ll never happen again.
Do they send a harsh message? Have you seen some harsh messages?
The courts love to use sentencing as a message to the community. What they’re saying is, “We won’t tolerate this. If you take advantage of the vulnerable, we’re going to come down on you.” You want to stop this before it happens if you can. If there is something going on, you want to catch it early and get the courts on your side, not against you.
Which is different than a civil liability, severe penalties, fines, sanctions. This Duty of Care Doctrine applies in various different ways.
In the instance I described, the family of the person who is being cared for sued civilly in addition to the criminal charges and got penalties. It wasn’t enough and you want to stop it from happening if you can. It wasn’t fair for the family to go to this whole thing to try to get restitution and to try to get fairness when if somebody like the employer done a duty of care search, they would have been in better shape.
What a difference it could be into the millions. It seems like jurors take heart and look to stand for and by the vulnerable.
Sometimes sanctions could be seven times the actual loss. We’re talking about millions of dollars of penalties and it would put somebody out of business. They don’t want to do a simple search. A Duty of Care search does not cost much more than a background check. It’s just going back further and looking at a couple more things. It’s not that expensive.
How can the reader engage this process differently? What should the firm or the business do?
If somebody wants to contact a PI agency to do a background check, which there has to be an agency with real people involved because otherwise, how do you verify who’s who? How do you put together things? Who’s going to verify with the court that the case belonged to them, that the sentencing is accurate? Who’s going to write a report? A computer can’t do that. If they don’t know what a Duty of Care Doctrine search is, I would move on to another company. If they have no idea what that means, then move on. If you want to engage someone to do your background checks for you, the duties and the function of that candidate or volunteer will determine the search that’s done. It could be a standard background check, a duty of care background check. It could be for medical professionals or it could be a due diligence search.
I could see how establishing a periodic rescreening on the calendar can make a big difference.
Every year, let’s say in February, we send an email to the client saying, “These are the people we screened a year ago. If they’re still with you, let us know and we’ll automatically redo it.” If they’re not with them, we don’t do it. In that way, they’re protected.
Expanding the scope of research can make a big difference too.
Let’s say that you want to promote somebody and you get a basic background check and then you want to make them the office manager, you should now instead of doing the same one again, even if it’s a year ago, you want to do a different kind because the level of responsibility and access to information is greater. You’re going to change your search to a duty of care search.
The FCRA compliance, what do people need to keep in mind?
FCRA stands for Fair Credit Reporting Act. That is the federal and state guideline that says what you must and must not do. A screening agency called a credit reporting agency, we call them CRA, is licensed to conduct the work. If you do an instant search, the computer program is not licensed as a credit reporting agency. It’s basically a database. You want to make sure a CRA does your work. They should be licensed. They should sign the report on letterhead so that you can have a name if you need to call somebody or have them in court who did the work. That way, the person who did the work can testify as to how they did the work in case something comes up.A lot of people in the workforce should be searched and examined under the Duty of Care Doctrine. Click To Tweet
That’s awesome, just thinking about these different ways that you can cover the FCRA compliance piece and these different things that need to be verified.
Any case that you find by computer, you still got to verify with the court directly. In case there’s a typo, which we get that sometimes. The individual has to sign authorization to do the background search and you also have a duty to the individual to give them a chance to correct any errors that the court might find. There has to be that ability for the individual to contest or to argue with the findings.
In summary, what are some things the employers and nonprofits seem to take away?
Employers and nonprofits have extra exposure and extra penalties they risk for an incomplete background check. That’s huge for them. Using licensed agencies will reduce exposure because now you can pass on the responsibility to that agency. If you and your office did it yourself and you don’t know what you’re doing or you miss something, you or the employer bears the full responsibility. Understanding the Duty of Care Doctrine allows someone to make better decisions and at least select the right background check. If you’re not sure, if you’re an employer or you have a caregiver attend to a child or an adult or you have a nonprofit, you can call and ask, “This is the work that they have. What kind of background check should I do?”
That’s a huge difference to have somebody like yourself there as a private investigator to check in for the employer to get the information they need to make a wise decision.
Background checks typically take three days. The reason is sometimes the searches can only be done in-person at the court. Somebody has to go and we have a network of agents around the country who can go. That’s the only way to find out what they have. We want to give everybody confidence that the work was done right.
What are more information about the ways we can support or your agency can support the reader to get greater protection?
Going to our website will help to at least get some explanation. My staff and I are ready to answer your questions. We’re happy to help out. We can direct you and give you some feedback as to what you’re looking into and what it is that you need to do. Remember that Information Is Power. Good decisions start with great information. It’s like looking through the windshield of a car, the driver is better informed as where to go if he can see out the window. That’s what we hope to do, give people good vision, good information and good data.
If we take a look at the things that we learned in regard to this, it can make a big difference to get people and employers specifically to move into actions so that the Duty of Care Doctrine gets followed and a safety and protection can be met for all.
That’s why we’re doing this. Hopefully, it was helpful and informative.
I feel delighted looking forward to our next one. The world of private investigation is powerful and it provides a lot of safety and information. People need to know who they’re in relationship with and who’s going to provide them safety and trust.
Thank you, Bill.