Waiver of Legal Claims for Pre-Employment Investigations OK'd by Ninth Circuit

By Ronald G. Guerra

A recent decision in a Ninth Circuit Court of Appeals case is good news for employers. Christine Nilsson was an applicant for a police officer position with the Mesa, Arizona Police Department. Ms. Nilsson was required to undergo a rigorous background investigation as part of the recruitment process. Ms. Nilsson agreed to waive all her legal rights and causes of action against the police department for investigating her suitability for employment.

After failing to pass a psychological evaluation, Ms. Nilsson was not hired, and she subsequently sued the City for various state and federal claims.

The Ninth Circuit Court of Appeals held the waiver of claims was effective. The court evaluated whether the waiver was voluntary, deliberate, and informed. In arriving at its conclusion, the court considered the following:

1. Was the release clear and unambiguous?
2. What was Nilsson's education and business experience?
3. Was the release signed in a non-coercive atmosphere?
4. Did she have the benefit of legal counsel?

Ms. Nilsson had a college-level education and prior work experience that was sufficient to establish her understanding of the release. Further, the release included a written warning, in bold capital letters, "TO READ CAREFULLY AND TO SEEK COMPETENT LEGAL ADVICE IF NECESSARY." The court also found that the written release was clear and unambiguous and there was no coercion in the execution of the release.

The good news for employers is that a well-written release and hold harmless clause will protect an employer against federal claims arising from the employment recruitment process. Employers should not overlook the use of such agreements when they conduct extensive background investigations before hiring prospective employees.

Remember, waivers will not fit every recruitment situation and care must be exercised in the use of such releases. Employers should consult legal counsel to assist in drafting clear and unambiguous waivers used in the recruitment process.

Published September 18, 2007

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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