Nov 25, 2014
Guest Post by Emily Main, Manager of Professional Services at Aurico Reports, Inc..
A new hire has been on-boarded and you welcome him with open arms. You’re confident in your selection because you’ve shown your due diligence by conducting a background search, checking references, and running a drug screen. He has the required qualifications and doesn’t appear to present a threat to your company.
So why is it that there are approximately six million threats and two million people fall victim to workplace violence in the United States every year? Thirteen people die due to workplace violence every week. In 2013 alone, violence, and other injuries by persons, was the second leading cause of death in the workplace, second only to transportation incidents. It is noteworthy that this does not include deaths to customers and third parties.
From a business perspective, violence is debilitating at a minimum and disastrous at worst. Workplace assaults cause about 500,000 employees to lose 1.8 million days of work annually. Employees who fall victim to workplace violence lose $55 million annually in wages. This adds up to a $4.2 billion annual expense for employers. In addition, 33% of employees admit to stealing a product or money from employers and an estimated 30% of business failures are directly related to employee theft.
- On August 20, 1986, a part-time letter carrier named Patrick H. Sherrill, facing possible dismissal after a troubled work history, walked into the Edmond, Oklahoma post office, where he worked, with three pistols and his postal bag filled with ammunition. Sherrill went on a murderous rampage, gunning down any co-worker who crossed his path. Within 15 minutes, he had shot 14 people to death and killed himself.
- The phrase ‘going postal’ first appeared in a St. Petersburg Times article from December 1993. The epidemic of postal violence started to get serious recognition on May 6 of that year, when two United States postal employees in two separate states shot up their workplaces within a few hours of each other. Remarkably, this incident repeated itself on the other side of the country four hours later.
- More recently in Illinois, a man walked into his air traffic control center in the early morning, started a destructive fire that halted flights for weeks across the Midwest, and then sliced his own throat.
The majority of companies in the US have embraced pre-employment screening in their hiring process. 92% of employers subject all or some of their job candidates to criminal background checks. While pre-employment screening plays a critical role in helping to protect companies from hiring dishonest and/or dangerous employees, too few realize that post-employment screening, conducted at regular intervals throughout an employee’s tenure, is equally as important in protecting company assets. One time pre-hire background checks minimize the risk of bad hiring decisions; periodic post-hire checks minimize risk for the long haul.
Like negligent hiring, retaining an employee whose potentially damaging behavior was known, or should have been known, by the employer, can bring about a case of negligent retention. First recognized by the Florida Supreme Court in 1954, the tort of negligent retention requires that the employer become aware or should have been aware of problems with an employee that indicated that employee’s unfitness, and that the employer failed to take further action such as investigating, discharging, or reassigning the employee. The justification for this vicarious liability is the employer’s control over its employees and the benefit the employer receives from its employees.
While analyzing such claims today, courts generally assess whether the employer exercised reasonable care in choosing or retaining an employee for the particular duties to be performed. Similarly, claims for negligent retention are based upon the premise that an employer should be liable when it places an employee, who it knows or should have known is predisposed to committing a wrong, in a position in which the employee can commit a wrong against a third party.
In the employment law context, plaintiffs often assert claims in conjunction with allegations of harassment and/or discrimination. By doing so, it’s important to recognize that a plaintiff may be subject to preemption legislation including worker’s compensation, harassment, and discrimination statutes. More than twenty states recognize such cases based on negligent harm inflicted on an employee.
Offenses with serious business consequences:
Drug use: According to the 2012 National Survey on Drug Use and Health (NSDUH), an estimated 23.9 million Americans, aged 12 or older, have used illicit drugs in the past month. This represents 9.2% of the population. Drug abusers can create risks in the workplace such as decreased productivity, greater likelihood of stealing, and altercations with co-workers.
- Criminal offenses: Becoming aware of criminal convictions allows the employer to take measures to reduce the possibility of workplace violence.
- Medical sanctions, exclusions, or debarments: Monitoring professional licensing ensures compliance with industry regulations and keeps service recipients out of harm’s way.
- Credit problems: Used only for positions in which knowledge of an employee’s credit habits are relevant and fair, this information may help to reduce identity theft, embezzlement, and fraud.
Because of federal and state mandates, post-employment screening is already required for many employers.
- Employers have a legal obligation to provide a safe workplace in compliance with the Federal Occupational Safety and Health Administration (OSHA) guidelines.10
- The medical and transportation industries are required to conduct annual searches on current employees. These annual searches help employers maintain workplace safety. The Department of Transportation requires employers of commercial licensed drivers to audit driving records and conduct random drug screening, as well as perform physicals. To meet state regulations, healthcare employers screen licensed healthcare professionals for healthcare sanctions (Medicare or Medicaid fraud) through the Office of Inspector General and the General Services Administration.
- Growing concern for the safety of children has prompted an increase in ongoing screenings for coaches, volunteers, counselors, and educators. Additionally, caregivers working with the elderly and those requiring assisted living require annual background checks.
Already considered a best practice to conduct background screening during the hiring process, those organizations that have high employee retention rates or policies to promote from within should have ongoing screening in place. For other companies, employees who were screened at the onset of employment may never have been rescreened or their education and credentials may never have been validated. Outsourced staff, contractors, ex-patriots, and offshored employees may have fallen through the cracks and had no or flawed pre-employment screening.
The possibilities for error, misrepresentation, or introduction of new information over the years are endless. Maybe an employee in an accounting department was convicted of credit fraud since his hire date. Perhaps an employee who works with kids was convicted of child molestation. Even more dangerous is the employee who was arrested, and let out on bail, or was a first offender who received probation for a serious crime. A recent post-employment screening study for a major retail group showed that seven percent of all employees who had started work with a clean record, had, since commencement of employment, acquired criminal records for serious offenses, ranging from robbery to drugs; all without the employer’s knowledge.
The paradox is that this can’t be done haphazardly or spontaneously. Current employees are entitled to the same legal rights as new applicants. An employer is bound by the same pre-employment requirements of the Fair Credit Reporting Act (FCRA). Post-employment checks must be done with consent (unless there is a specific investigation for suspicion of misconduct or wrongdoing). Although most consent forms contain “evergreen” language that makes the consent valid indefinitely, or until revoked (usually in writing), at some point an employee can either withdraw the consent or claim it has become stale over time. In California, it may be argued that a new consent is needed each and every time. In addition, adherence to the Adverse Action Process is essential if any information from the background check will have a negative impact on the future of an employee’s employment.
Consequently, any evidence that would suggest to a reasonable person that an employee might have a problem that potentially interferes with his/her job and/or the welfare of the workplace, requires a timely and affirmative act of inquiry. It is the employer’s duty, once triggered by a reasonable suspicion that a problem might exist, is two-fold:
- Reasonable investigation based on the findings
- Based on findings, reasonable intervention
Reasonable intervention in negligent retention cases typically amounts to taking the appropriate actions to prevent reoccurrence of the offense.
In summary, employers that intend to develop a healthy, safe, and secure workforce and working environment must protect themselves, their company, and their employees, to minimize the risks from potentially hostile sources. “Post-employment screening allows employers to quantify their liability for retention negligence, while mitigating serious risk,” says Ben Goldberg, President of Aurico Records, Inc. “Your background screening should be able to offer expertise and guidance to develop a consistent and appropriate pre- and post-employment screening program.”
Visit Aurico Reports, Inc. to learn more.
Need to hire the best talent? Take a look at SilkRoad Recruiting.
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