The recent story of a Mall Santa accused of sexually assaulting an 18-year-old coworker at the Hanover Mall in Massachusetts highlights the potential pitfalls of hiring for the holiday season. In this case, the seasonal employee was subjected to a criminal background check and had no criminal record. That said, the case highlights the fact that it is good policy to properly check these records in order to screen out potential problems. Even in the rush of the holiday season it is important to follow proper hiring procedures.
Laws surrounding when and how to utilize criminal background checks can be confusing. We have reported in the past that landlords are not generally required to conduct checks on their tenant’s employees. In Massachusetts, state law has sought to de-emphasize the centrality of criminal background checks generally, specifying how to use checks in the hiring process. Meanwhile, Massachusetts has also increased mandated background checks for people working with children. As this paragraph indicates, the rules governing background checks — both in terms of permissibility and scope — vary from jurisdiction to jurisdiction. Nevertheless, the story of the Mall Santa should remind all seasonal employers of the importance of taking legally proper steps to avoid legal (as opposed to illegal) exposure from their seasonal hires.