The hiring process is not an easy task. There are dangers lurking everywhere when it comes to avoiding pitfalls and mitigating risk. Your employees and clients need to be safe. Therefore, who you bring on board can’t pose a threat or danger to anyone. While thorough background investigations can assist with avoiding a negligent hiring lawsuit there are also mine fields to navigate on the applicant side including complying with laws and regulations that promote fairness, full disclosure, and anti-discrimination policies. On one hand, you must be vigilant in your screening process, but risk also comes with background investigations that are not in compliance. Read on to learn the 7 ways to hire and hold a healthy, happy workforce while avoiding the occupational hazards HR professionals face: employment litigation.
Step 1:
Hire the Right People
It is important to conduct thorough background investigations to make sure your workforce and the people that come into your business are safe. As long as you follow the Fair Credit Reporting Act (FCRA) requirements including disclosure information to applicants and the correct version of the Summary of Rights, this is a critical step that can prevent theft, discrimination, harassment, and violence in the workplace. To illustrate how non-compliance with FCRA rules can cause problems, read about a decade-long dispute between an employer and employee that is now going to trial here.
It is also important to follow the Equal Employment Opportunity Commission (EEOC) rules by not discriminating against a job applicant or an employee because of the person’s race, color, religion, sex, national origin, age, disability or genetic information. Another compliance issue that must be considered are the timelines for reporting criminal convictions. Click here to download an easy-to-read chart that includes a state breakdown of time reporting restrictions for criminal convictions.
When conducted properly by a thorough, reputable background investigation firm, pre-employment background investigations are the first step to hiring the right people and setting the foundation for a healthy work environment. Keep in mind that people do make mistakes and people can change. Each arrest/conviction record should be considered in its proper context before any adverse hiring decisions are made.
Step 2:
Establish a Positive Corporate Culture
Open communication, treating each other with respect, emphasizing positive core values such as integrity, honesty and passion for excellence…these are the cornerstones of a healthy workforce. Setting expectations and policies for internal and external communication such as what is and is not allowed to be posted on personal social media pages helps avoid complaints and protects the company’s reputation. Setting policies at the outset brings awareness to what is and is not an offense for which an employee may be terminated. If everyone is expected to behave in a certain way, before long it just becomes a natural part of the culture. Positive actions in time become positive habits with the result being a positive corporate culture. Focusing on culture goes a long way to discourage and eliminate verbal and physical abuse, sexual harassment, and discrimination claims.
Step 3:
Maintain Safety through Social Media Investigations
At this stage, you have put your workforce in place (which is an on-going process) and created a positive corporate culture. But it’s not in the company’s best interest to rest on your laurels. Although you may think you know who works for you, there have been numerous instances of workplace violence that could have been thwarted had someone bothered to look at the threats and weapons they posted to their social media account. Another unfortunate threat is domestic violence. Your employee may seem fine but many times a spouse or boyfriend has entered places of employment and threatened, injured or even killed the victim’s co-workers. Ongoing social media investigations can mitigate risk and reduce the likelihood of costly post-incident litigation.
To a lesser extreme, even posts exhibiting racial discrimination, hate speech, sexually explicit material, illegal activity or disparaging remarks about the employer should not be tolerated. It’s the employers’ job to keep employees safe from extremist views that could be offensive or even dangerous. Not only do social media investigations protect employees, it can help protect the employer from EEOC discrimination claims based on protected status including retaliation, race (including harassment) sex (including pregnancy-related discrimination and sexual harassment), disability, age, national origin, religion and color.
How to conduct social media investigations legally? Only launch social media investigations after proper consent forms are obtained and personally identifiable information is established. Proprietary software is used to find user-generated information posted on accounts and profiles. Human analysts confirm accuracy of identity and review for red flag behavior. Any federal or state protected class information is redacted in compliance with HR laws. The reports can only be used for permissible employment purposes as defined by the FCRA and notices that comply with the FCRA and state law must be provided to the employee or applicant if adverse action will be taken.
In summary, social media investigations can protect your company, employees and clients by maintaining a safe working environment and mitigating the risk of a lawsuit.
Step 4:
Conduct Post-Hire Background Checks
While a pre-hire background screen can catch historical criminal activity, periodic rescreening is a good idea to catch not only criminal activity but other activity including driving and motor vehicle infractions at the time of the rescreen. Post-hire investigations can maintain safety for your company, employees and clients. Based on Step 2 – Establish a Positive Corporate Culture, you may say, “why the need for post-hire investigations?” A survey of board members whose companies had been through a crisis asked: What would you do differently? The most common response was to DO MORE TO IDENTIFY CRISIS SCENARIOS AHEAD OF TIME. Ongoing background investigations can help identify crisis scenarios ahead of time.
Step 5 :
Subscribe to Continuous Criminal Monitoring
According to studies, nearly 12% of an employers’ workforce may be arrested, in some cases repeatedly, within the next five years. That statistic is too high for some industries or certain positions. In that case, continuous criminal monitoring may be warranted. This solution can proactively alert you to criminal activity among your existing workforce in real time, throughout the duration of employment by accessing the largest jail booking database in the country. In many industries, such as companies who have contractors that go into other businesses, workers who care for the elderly, children or mentally challenged, drivers who put others at risk, or sensitive occupations that require access to a company’s finances or trade secrets, continuous criminal monitoring can mitigate risk and prevent a tragedy from happening by filling in the gaps between pre-employment and periodic post-employment background investigations. This subscription service can be customized to monitor certain segments of your workforce or by the seriousness of the crime. Companies looking to mitigate risk and maintain safe work environments should know if an employee is involved in embezzlement, theft, or an assault.
As with all types of employment investigations, it is worth repeating that compliance is also key to mitigating the risks of lawsuits. Be sure to comply with FCRA, federal and state laws regarding disclosure, authorization requirements and the adverse action process in case the employee is terminated based on what the monitoring service uncovers. It is important for employers not to base decision on arrest records and remember that employees are allowed to dispute findings. According to an article published by the Society of Human Resource Management written by Roy Maurer, “…it’s the provision that requires written consent by an employee before a background check is conducted that can get a little tricky.” He goes on to quote Jon Hyman, a partner in the labor and employment group of Meyers Roman Friedberg & Lewis, based in Cleveland who said, “If you want the authorization to allow you to run these background checks throughout the person’s employment, you must be sure you say so clearly and conspicuously in the notice and consent. Otherwise, you have to provide a fresh new notice and obtain a new consent each time.” Also some states, such as California, have had litigation issues in some jurisdictions over whether continuous authorizations are even permissible, versus authorization that must be obtained each time. Therefore, it’s important to keep up with the requirements in your State.
Step 6:
Avoid Workplace Discrimination
The most common post hire lawsuits involve workplace discrimination. As mentioned, EEOC works to defend workers and remove barriers to equal employment opportunities. Employers who violate EEOC rules can face serious financial consequences. If an employee is in a protected class who is performing their job well but suffers an adverse action such as termination, reduced hours or lack of promotion, then charges could be brought against the employer. Be careful to provide equal pay and not retaliate or discriminate based on person’s race, color, religion, sex, national origin, age (40 or older), disability or genetic information (including family medical history).
Step 7:
Steer Clear of Common Post-Hire Litigation
Harassment
Remember to publish strict polices and guidelines in an Employee Handbook and enforce violations. If a complaint is filed, it should be addressed as soon possible.
Wrongful Termination
Maintain accurate records of performance, warnings, and employee discipline. Never terminate an employee based on retaliation or for taking a legal leave of absence.
Overtime
Under the Fair Labor Standards Act, non-salaried, hourly employees must be paid overtime in certain situations. Accurate hours must be tracked, and overtime paid when required.
Personal Injury
Prevent charges that an employer’s negligence led to the employee’s injury by thoroughly training staff on workplace safety and timely responding to safety issues.
Conclusion:
According to the Society of Human Resource Management (SHRM), “under the doctrine of negligent hiring, an employer is liable for harm its employees inflict on third parties when the employer knows or should have known of the employee’s potential risk to cause harm, or if the risk would have been discovered by a reasonable investigation.” With that in mind, following these steps will serve two purposes: One – you will be conducting reasonable investigation, both pre- and post-hire, to make sure the people you bring on board will not likely inflict harm on others; and Two – you will maintain HR compliance in all aspects of investigations to avoid both FCRA/EEOC litigation and lawsuits by disgruntled employees. The bonus result is that creating a culture of respect and straight-forward expectations about allowed behaviors in the office setting will establish a healthy, happy workforce.