The office manager has just told you there has been an incident with a customerand it appears it was caused by an employee you hired a couple of months ago. Your first question is “What could have happened?” and the second one is “How will this affect me and my company?” Even if you carry insurance, this could be a disaster.
Workplace violence is not new and is becoming more prevalent every day in dramatic situations such as the Xerox employee in Hawaii and the day-trader in Atlanta. More than two million Americans are physically assaulted each year and one in four workers is harassed, threatened, or assaulted on the job. The most recent government statistics on workplace homicides show that ‘work associates,” both current and former, account for more than 14 percent of the job related homicides in 1996 and increased 55 percent from 1992. When you hire someone you don’t think a tragedy like this will strike your company, however it is becoming more and more commonplace.
The liability of employers for violent acts committed on their premises or associated with vehicles, has never been greater. Courts increasingly award recovery to employees, customers, and others who have suffered assaults, harassment, or worse from vicious workers. You say you don’t or didn’t know an employee was a risk.
This is a case of what you don’t know can hurt you. A company may become liable for its own negligence by hiring an employee who proves dangerous to others if “the company knew, or should have known through reasonable hiring efforts, that the person was dangerous or unfit.” In short, if through your negligence you hire an individual who could pose a threat to employees, customers, and others, you are putting your entire company at risk. While the Americans With Disabilities Act prohibits you from discriminating from hiring workers who may have disabilities, employers are not obligated to hire individuals who pose a “direct threat” or “a significant risk of substantial harm to the health and safety of the individual and others that cannot be eliminated or reduced by reasonable accommodations.”
As a business owner, knowing this will not protect you. Only your actions will protect the individual hiring manager and the organization from litigation. To ensure that you have done the “due diligence” necessary to screen out anyone who poses a “direct” and “significant” threat to employees, customers, and others, be sure to do the following: Begin by determining risk related essential job functions so you can see what steps must be taken. The more the risk, the more steps to be taken.
Questions to be considered are:
• To whom does this person have access? Employees with frequent and unrestricted access to customers and employees present a greater risk than those who work in relative isolation.
• What security factors are present in the job? The main question is whether the individual works alone or is supervised by others or by electronic means.
• What tools or equipment do employees typically use? If dangerous items could be a normal part of the work site, or readily concealed in things such as [tool boxes and tool belts], that deserves careful consideration.
• Are there any unique risk factors during normal contact with others? The main consideration here is whether normal forms of job contact, in conjunction with mental disorders, contribute to the potential for violent behavior. Before presenting a job offer, the hiring manager and company must do an effective job of screening to eliminate candidates who pose a threat. The following are screening methods.
• Job interview.Ask probing questions to uncover examples of behavior that could indicate tendencies that put others at risk.
• Criminal record request on application. The application should ask, “Have you been convicted of a felony? If, so give details.”
• Background checks.For as little as $20, an employer can get a basic report drawn from national data on prior convictions and prison records associated with violent crimes and drug offenses. Felony conviction records are available at local courthouses.
• Drug test.The Center for Drug Abuse can provide the names of competent laboratories that can screen for illegal drugs for those considering being hired and for current employees. They can be reached at 800-843-4971.
• Employment references.For as little as $12 per reference listed, employers may verify pre-employment information (dates of employment, job titles) and such risk related information as to the applicant’s ability to get along with others, safety issues, and honesty. Remember to get a signed authorization waiver from the applicant before conducting these activities.
• Pre-employment evaluation instruments.
A number of paper and pencil integrity instruments are available to assess an applicant’s attitudes toward integrity, substance abuse, reliability, and work ethic. Instruments are becoming more convenient for smaller organizations such as tree care companies to use because of accessibility via the Internet. (www.OutlawGroup.com, has Integrity Testing, Background Checking, and Reference Checking available.)
The Employers face a difficult situation. If they go too far in conducting pre-employment screening, an applicant’s civil rights might be violated. But if little or none is done and problems occur, those affected might seek damages for negligent hiring.
The workplace is considered all areas the individual would be in while under your employment, which includes to and from the job site. You may also be liable for the employee’s after hours behavior if the initial contact took place as a part of work. As you can see, the exposure to liability is diverse.
While the law may limit methods or even the extent to which certain information can be used, it does not limit normal “due diligence” or prudent fact checking to ensure you are hiring an individual who is not a known threat to others, and, most importantly, a productive employee. Because of the importance of the “due diligence,” over half the states have enacted statutes that give employers a qualified privilege when checking references. It is a good idea to check with a local labor attorney to find out if in your state you have this “qualified privilege.”
If that fateful phone call comes notifying you of an unfortunate incident on the job site, your company will be much safer from a legal standpoint and you will rest much easier from a moral standpoint if you know you did everything reasonably possible to prevent it. Begin today by examining your hiring process and making the changes necessary to prevent violence and illegal activities in your workplace. As an additional benefit, you will select and retain more productive customer-oriented employees, which will raise the performance and productivity of your company.
© 2000 Outlaw Group Inc. All rights reserved.
If you would like a copy of a special report entitled “Verifying Performance” that gives you more details about how to verify the background, work experience, and criminal history of applicants, please e-mail your name, company, and address to info@OutlawGroup.com and request “Verifying Performance” report in the subject line.
No comments:
Post a Comment