Employment background screening is a complicated and tricky area of the law. Aside from the various federal laws that govern our industry, there are a myriad of state and local laws that also must be considered. That’s why litigators place a tremendous amount of trust in the opinions of expert witnesses in tort cases. The value of an expert witness increases in complicated and niche cases such as Fair Credit Reporting Act (FCRA), Equal Employment Opportunity Commission (EEOC), workplace violence, and negligent retention or negligent hiring cases.
I have been hired as an expert in over 20 civil cases, both in state and federal court. These cases have included individual suits, class actions and mass torts. I have worked for both the defense and the plaintiff, but focus on defending background screening companies and end users alike. Some of these cases have been high profile, including the largest class action ever filed against the US Government. I served as the government’s expert to defend their screening practices during the 2010 decennial census.
The type of work an expert performs on a case varies, but some of the most common are as follows:
Educate counsel –The role of the Expert Witness is to educate counsel about background screening. Lawyers tend to be generalists, very few are experts in FCRA. The expertise is brought to the case to enlighten both sides, but in some cases it can be a strategic way to discredit the opposing counsel’s position.
Case evaluation – Experts are often used by lawyers to evaluate a case and help determine whether a claim has merit. Oftentimes experts will be used to evaluate the nature and extent of the damages sustained, loss of earnings capacity and income a claimant has sustained for use in settlement negotiations.
Provide written statements – Usually in background screening cases the first step after retention is to review the case and pertinent documents and provide a written report. This is always a sworn affidavit and will be used in connection with motions or other court proceedings prior to a trial and/or deposition. The report will always be at the center of the deposition when the expert is being cross examined by opposition counsel.
Discredit opposition experts – Counsels ability to get not only an expert but a quality expert is paramount. I’ve done countless cases where opposing counsel did little research to hire their expert. In some cases the person may be a hiring expert or even a private investigator, but has no idea about industry standards in background screening. This creates a very weak case that may be easy to discredit. Making sure you find an expert that is truly knowledgeable in the particular field you need is important and often overlooked.
Deposition and Trial – Having an expert with previous experience that can defend their position and their report in trial and/or deposition is probably the most important thing to look for. One can write a great report, but if they can’t defend it they will be quickly dismissed. Experience and a good mix of defending both sides of a case is also important. Sometimes a hired gun that only works plaintiff cases or vice versa can hurt your expert’s chances of making a well rounded argument.
Other things experts are used for include but are not limited to: Preparing demonstrative evidence, obtaining other experts, case consultation, case development, testing, experimentation and rebuttals.
Aside from expert testimony in court cases, I’ve also been used many times to give testimony in legislative matters. For instance; many years ago I was hired to help pass a law called Nan’s Law in Pennsylvania. The attempt was to require a background check on employees who work in hotels who have access to keys. One of my favorite roles was to give testimony in front of State and Local governments on why the background checks used by Transportation Network Companies (TNC’s) such as Lyft and Uber are superior to the FBI background checks utilized by taxi cab companies. I testified more than 10 times, which helped Lyft and Uber prevail 100% of the time.
My expertise in background screening is pretty extensive, having been in the industry for so long. I try to focus on a few areas of concentration, but have been asked and have performed in other areas as needed.
My Expertise includes:
- Fair Credit Reporting Act (FCRA)
- Equal Employment Opportunity Commission (EEOC)
- Negligent Hiring
- Negligent Retention
- Industry Standards
- Workplace Violence
- Human Resources
- Background Screening Process
- Accreditation
- Background Screening Company M&A and Valuations
- Civil Class Actions
- Mass Tort Actions
- National Association of Professional Background Screeners (NAPBS) Standards
If you are looking for an expert witness or want more information feel free to hit me up and visit my website at www.jasonbmorris.com
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