Law: Before arming employees, protect yourself

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Following several high profile workplace and other public shootings, many commentators have recommended, among other things, arming certain employees and creating an armory in the workplace.

While many employers may not be considering arming their work force, an increasing number of employers may be considering more rigorous background and reference checks on applicants. However, any employer should plan ahead before implementing such policies and consider possible litigation risks.

Human resources specialists often used the acronym LIAR, for “look into all references,” as one study found that around 33 percent of job seekers affirmatively lie on their employment applications, not including lies by omission.

But this is an area where one size may not fit all hiring situations. For example, employees with special responsibilities arguably require a more rigorous background check — those with access to children, aged and developmentally disabled persons, who operate motor vehicles or heavy equipment, who use weapons, who have access to funds and those with access to master keys, alarm codes and trade secrets.

But if an employer’s purpose is not to discover security or honesty issues but merely to identify the risk of poor performance, a different background check should be used. That is, will the employee be reliable in attendance, or arrive to work drunk or badly hung over?

Another important consideration when deciding how thoroughly an employer performs a background check may be avoiding a lawsuit against the employer. In 1999, the Iowa Supreme Court recognized that negligent hiring was actionable, based on the theory that employers have a duty to hire employees who will not cause harm to others.

Negligent hiring claims are lawsuits filed by a third party, such as a customer or co-worker, against an employer alleging that employer is liable for injures cause by an employee. It also extends to negligent retention or negligent supervision of employees.

The reported cases in Iowa involve such job classifications as pizza delivery people, cable installers and school teachers. The courts look at the type of work and the likelihood of exposing members of the public to dangerous employees, and the employer’s actions to learn or discover a potential employee’s dangerous characteristics, among other things.

This includes a reasonable investigation of a prospective employee’s background.

Iowa is not alone in recognizing such claims. In June 2012, a settlement was reached in a Missouri workplace shooting incident.

In that case, a 21-year-old named Frederick Jones entered a Shell Gas station in Missouri and had an altercation with one of the clerks. Another store clerk in charge of security shot and killed Jones.

Jones’s estate sued the employer, alleging negligent hiring and training, and alleging a failure to establish an appropriate security plan at the store. The estate also sued the property owner, alleging breach of its duty to provide security on the premises.

The parties settled for $3.1 million, mostly paid by the employer.

Remember that the best way to perform a background check is with the applicant’s express written consent. Having the applicant sign such a release with the Fair Credit Reporting Act disclosure will satisfy the law and also may avoid litigation for invasion of privacy or similar claims.

In Iowa, employers may check credit history, criminal records, work history and driving records. If references are required on the application, check them and remember that Iowa law expressly permits an employer to provide work-related information in good faith without fear of a defamation lawsuit.

Of course, many employers continue to confirm only dates of employment, job title and salary, for consistency and heightened protection.

You also may want to consult the EEOC’s recently issued (2012) enforcement guidance on use of arrest-conviction records in employment decisions, and adverse impact on race and national origin applicants.

Pre-employment checks are important, but so are periodic re-checks for those employees as well as checks for employees in sensitive positions. If an employer becomes aware that any employee poses a potential danger, the company should take prompt remedial action including termination of employment.

Many employers may want to consider background checks of independent contractors and others — such as vendors — that have the potential to cause serious harm. And, what about volunteers that have access to your property and customers?

If you don’t have the staff to perform these tasks in-house, consider hiring a consultant or private investigation agencies’ services. There is an industry trade association called the National Association of Professional Background Screeners that may be able to assist.

In any event, careful background checks and references by the employer may weed out dangerous employees and show that an employer was not careless in its hiring practices.

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