Do you know who you are hiring? - preventing workplace and employee violence

Edward Niam, Jr.

The doorbell rang, and Elizabeth Harrison went to answer it. Looking through the peephole, she noticed a familiar face. It was neither a friend nor an acquaintance, but a man who had been in her house just days before. Opening the door, she allowed someone in who would change her life forever.

Harrison let into her home a delivery man who worked for Tallahassee Furniture. Just a few days earlier, he and other employees had delivered furniture and picked up a piece that needed repairs.

Using a pretext, the delivery man, who was alone this time, gained entry into her home. He proceeded to attack her viciously with a knife, permanently damaging one arm and inflicting emotional scars that may never heal. Harrison sued Tallahassee Furniture and was awarded $1,900,000 in compensatory damages and $600,000 in punitive damages. During the trial, the evidence showed that the delivery man never had filled out an application or was a pre-employment background investigation conducted. A simple criminal records search, costing as little as $20, would have revealed a long documented history of violent criminal acts.

The jury's verdict in favor of Elizabeth Harrison found Tallahassee Furniture negligent for not checking the delivery man's background. Was she wrong in letting that person into her home? Should she have known the person delivering her furniture was a convicted criminal with a history of psychiatric problems'? There is an implied trust that the person representing the cable company, public utility, pizza shop, or furniture store has a clean background and is not a dangerous felon. People have come to expect -- and demand -- that the service people they come in contact with every day have been thoroughly screened by employers so that they do not have to be concerned with becoming victims of rape, robbery, and attack in their own homes.

This trust often is misplaced because there are individuals who have serious problems in their backgrounds working in every industry in this country. The workplace is teeming with acts of violence, drugs, and theft.

In the human resource service industry, there is an age-old question: How do I hire the best people for my company? The solutions are not simple, but there is a starting point. Pre-employment background cheeks can provide the necessary information to take the guesswork out of hiring the best candidates.

A pre-employment background check encompasses verification of the information contained in a resume and employment application, as well as researching data from other sources. As a note of interest, in Ohio, falsification of a job application is a violation of the Ohio Revised Code 2921.13 and a criminal offense. An employer should specify the areas of greatest concern for each level of employment.

Most information included in a pre-employment background check comes from public record sources, with the exception of a credit report, for which a signed release is essential. Employers will the on firm legal ground as long as inquiries comply with the Fair Credit Reporting Act, Americans with Disability Act, Equal Employment Opportunity Act, Title 7 of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act.

There are many reasons to conduct pre-employment background checks on job applicants. The first and foremost is to hire better workers. This will ensure a number of benefits such as a total lower cost of hiring: reduction in turnover; protection of assets and the firm's name; shielding employees, customers, and the general public from theft, violence, drugs, and harassment; and insulation from negligent hiring and retention lawsuits.

Credit history. According to the Fair Credit Reporting Act (Public Law 91-508), there are several permissible purposes for which a consumer's credit report may be obtained. For this article's purposes, we are concerned about pre-employment, retention, promotion, and re-assignment. Every employer has the right to review the credit history of any job applicant. This phase of a background check requires a signed release.

Years ago, the concerns were that one only had to look at a person's financial history if he or she were going to handle money. This no longer is true. The credit report has become an integral part of any comprehensive pre-employment background check. It verifies the name, address, and Social Security number of the applicant and may provide prior addresses that can be used for more extensive criminal searches as well as cross-referencing employment information. It includes public records such as judgments, liens, collections, and bankruptcies.

Credit reports provide a detailed history of accounts, payments, and liabilities showing total debt and a monthly breakdown of financial obligations. Heavy debt may be a catalyst for several areas of criminal behavior such as theft, drugs, prostitution, and violence. In the search for the best candidate, if applicants can not manage their own affairs, how will they handle your business?

This same criteria should be considered if credit reports are utilized for promotions, retention, or re-assignment of current employees. A signed release must be obtained each time an employee's credit file is accessed.

The absence of a credit report can be indicative of an applicant with a questionable background. When a credit history can not be found for someone who has been in the workforce for 10 or more years, there could be one of two explanations: The person has paid cash for everything or has assumed a false identity to conceal problems in his or her background. Which explanation is more plausible?

Criminal history. A criminal record search should be conducted for every applicant being considered for hiring. Finding the information needed can be a long and convoluted trail. Although there are differences in the court system from state to state, the basic breakdown is Federal, state, county, and municipality. Which courts should an employer search and how thorough can this information be?

Federal crimes, such as bank robbery or credit card fraud, are not as common among job applicants as state offenses like rape, aggravated assault, theft, and drug-related crimes. In general, the most thorough and up-to-date information will come from the county courthouse, where records of all felonies are maintained. It is standard practice to conduct a search in the county where applicants reside. If they moved recently, the prior residence should be checked as well.

Some state repositories allow their records to be accessed for pre-employment screening, but they usually make it difficult and the information often is incomplete and not current. It should be noted that there is no legal method of instantly searching all the criminal courts nationwide. The National Crime Information Center, maintained by the Federal Bureau of Investigation, keeps records of most felonies and some misdemeanors, but is for the sole use of law enforcement agencies. In other words, if an employer has a friend at a local police department who is checking applicants through computer, they both are breaking the law.

Criminal records generally are kept on file for seven years. This is so an applicant is not discriminated against for a mistake made early in his or her life. Juvenile records are not accessible for pre-employment screening. Once an individual reaches the age of 18, the record is expunged.

A national parking lot company hired someone at one of its locations and put this person on the job before the background check was complete. It soon was disclosed that the applicant had three prior convictions for aggravated assault. Would you want to be the one to fire this person? Get the facts before you hire.

Driving record. Even some enlightened employers still believe that a motor vehicle record (MVR) should be run just on someone driving a company car or truck. A driving record, or lack thereof, reveals a great deal about a job applicant. It verifies the subject's name, address, Social Security number, and, possibly, physical description. If the address does not match that on the application, it could be a possible warning sign and something else to discuss with the applicant.

A typical MVR covers a minimum of three years of driving history and details of traffic citations, accidents, driving under the influence (DUI) arrests and convictions, and license suspensions, revocations, and cancellations. Driving habits may reveal drug and/or alcohol abuse and a person with a lax sense of responsibility. Do you want someone who can not drive a car without an accident or someone with an arrest for DUI handling any phase of your business?

It should be emphasized that an applicant with two or three DUIs most likely has driven many times under the influence before being caught. Driving histories are obtained state by state, and most require a driver's license number for accessing those records. Although several years ago it was not uncommon for people with driving problems to have several valid licenses, it now is illegal to have a valid driver's license in more than one state. A common red flag is when a driver's license does not match the current state of residence. There could be legitimate reasons for this, or it may mean that the applicant "burned out" his or her license and went across the state line to get a clean one.

Another area of possible concern is the applicant with no driver's license. There are people who do not drive, but nowadays it is rare. Some applicants use this ploy to conceal a bad driving record or suspended license. In lieu of a driver's license number, always ask to see a state I.D. card. What would you think if you observed the person you recently hired driving to work when you were told that he or she did not have a driver's license?

Prior employment. Verifying an applicant's current and past employment is essential to a complete background check. If people hired are required to be licensed by the state, the current status of that license must be verified. Licensing agencies maintain records of complaints, criminal charges, and revocation of licenses. Information such as job title, duties, and dates of service should be verified to establish that the applicant has the necessary work experience needed for the position offered. Eighty percent of all resumes include lies in regard to an applicant's work history. Inaccuracies in dates of employment often are indicative of an individual attempting to conceal an extreme lack of actual work experience. In worst cases, he or she may be trying to conceal a criminal history.

Many companies will not comment on performance ratings, fearing possible lawsuits. In actuality, firms should be more inclined than ever to release factual information about a former employee. The courts are allowing lawsuits against a business withholding details that might put others in jeopardy.

If you do not think checking prior employment is important, take as an example the former worker who stole company stationery and typed his own letter of recommendation, falsifying the name of the manager. He did this to conceal the fact that he was terminated after three months. He claimed employment for three years.

Education verification. Any company giving preference to or requiring a college degree or higher must verify at least the highest level of education obtained. In exchange for a payment, there are institutions that grant degrees, complete with transcripts. These diploma mills are in no way a recent phenomenon. Such institutions have been in existence since the late 1970s and currently are operating in approximately 20 states. It is possible, for the right price, to obtain any type of degree without ever attending a single class. If education is important for the job, it is worth verifying.

Civil litigation. A history of civil suits a person has been involved in can help fill in details about an applicant's background and character. Research of municipal, county, and Federal district courts can reveal judgments for monetary damages, injunctions, liens, child support, alimony, and bankruptcies. Most of this information is included in a pre-employment credit report.

Personal reference check. Information regarding a subject's strengths, integrity, and responsibility is obtained through an interview with references provided by the applicant. Reference checks can help establish an applicant's residency and ties to the community. Not all references say something nice about the applicant. It is not unusual for a personal reference hardly to know and even dislike the subject in question. Many applicants will list references haphazardly, assuming they either won't be contacted or will respond with polite indifference.

Should employers wish to go deeper, the developed reference is the next step. Additional names are obtained from the references listed by the applicant. The benefit of talking to these people is that they will not have been coached by the applicant to provide positive information.

Workers' compensation history. Fraudulent workers' compensation claims are becoming a serious problem for companies nationwide. These records can be accessed electronically from 18 states. The remaining 32 either do not release the information or make it difficult to obtain, with a turnaround time ranging from a few weeks to several months. Workers' compensation records are classified under the American Disabilities Act (ADA) that became effective for companies with 15 or more employees in 1994. This law states that "an employer may not inquire about an individual's workers' compensation history at the pre-offer stage." The Equal Employment Opportunity Commission has interpreted that workers' compensation inquiries fall under Section 1630.14 (b) of the ADA: "A covered entity may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry) regardless of disability."

A workers' compensation history check is permissible only after an offer of employment is made. This offer can be conditioned on the individual's ability to perform the essential functions of the job. One benefit of a workers' compensation check is finding a claim at a company not listed on the application. It even could be in another region that should be searched for a criminal history of the applicant. The most important benefit of a workers' compensation check is the discovery of frequent, possibly fraudulent claims.

Social Security number verification. Social Security numbers automatically are verified when a credit report is ordered. There are times, however, when a financial history is not wanted or needed. The SSN verification is the answer. It provides verification of the applicant's name and SSN as well as anyone else who has used that number. Prospective employers may get up to 10 prior addresses for an individual. With the transient nature of today's workforce, it has become an essential component of a thorough background check.

Background chocking

The entire process starts with the employment application. All prospective employees, regardless of the position they are applying for, must fill out an application in their own handwriting. A thorough background check is not possible without a detailed and completely filled out application. Reading the application and looking for warning signs is a skill that is developed over time. Some obvious red flags are previous addresses that do not match job history, gaps in employment, lack of detail, illegible writing, and an unsigned release.

Employers should not let anyone substitute a resume for a properly filled out application. A resume merely includes information the applicant wants the employer to know and usually will invariably lack detail. The application, on the other hand, asks specific questions in a standard format, requiring the subject to be honest. Essential information that frequently is not elicited from applicants, but should be, include: List any additional names used in previous employment or while attending school. May we contact your present employer? Previous addresses for the past 10 years. A comprehensive, signed release.

After reading the application, firms should eliminate those that do not have the criteria necessary for the position to he filled. In many companies, applicants are interviewed several times by many different people. Although this practice has some benefits, it has one major flaw. Each separate interview with a different person is a first interview for the applicant. The applicant is fresh each time and always may make a good first impression. The human resource specialist should interview the applicant more than once. With a second and third interview, it is possible to break down barriers and see people as they really are.

The total cost of an entry-level employee who is not retained by a company can run as high as $10,000 for the first three months. This includes salary, benefits, and training. By conducting thorough background checks, companies can hire a better quality staff and train people who are more likely to remain with those firms.

A nurse's aide was hired based on her application and interview. Several weeks later, a background check was conducted that revealed three recent convictions for theft, drugs, and prostitution. Obviously, this is not the kind of person who should be caring for the sick and/or often helpless elderly. Would you want her watching over your grandparents?

The ideal situation is to conduct background checks on all applicants being considered for hire, regardless of the position for which they are applying. Less information may be needed for an entry-level position than for management. For instance, credit information, criminal history, and motor vehicle record may be sufficient at one level. For management positions, a company might want to add employment and education verification.

Once it is decided what information is important for each position, the same background check should be conducted every time. Consistency is the key to structuring and maintaining a quality pre-employment screening program. Remember, without factual information, any hiring decision is nothing more than guesswork.

In Holden v. Hotel Management, Inc., a jury awarded $1,000,000 in compensatory damages and $5,000,000 in punitive damages to a man whose wife was murdered by a hotel employee. The hotel management company, against whom the claims were levied, had failed to conduct pre-employment screening and reference checking that would have revealed the murderer's violent history.

Negligent hiring and retention lawsuits are on the rise. Negligent hiring arises when a company fails to conduct a thorough background check on an employee and there is something in that person's past that might put others at risk. Traditionally, employer liability allows recovery for wrongful and criminal acts of workers when they occur within the scope of their jobs. It is possible to collect liability payments when offenses are committed even when an individual is not "on the clock." Negligent retention applies this same principle when information is discovered about a current employee, yet that worker is not terminated immediately.

Every company, regardless of size. should run background checks on applicants. Downsizing is becoming a major factor in businesses not only remaining competitive, but surviving. It is critical to make the right hiring decision every time.

Thirty percent of new business failures are caused by employee theft or embezzlement. Internal theft occurs 15 times more than external theft. More than 2,000,000 personal thefts happen annually in the workplace. Seven percent of all rapes, eight percent of robberies, and 16% of assaults occur at work. If companies still are not sure that pre-employment background checks are important, they should ask Elizabeth Harrison. She speaks from a perspective the rest of us hope never to experience.

COPYRIGHT 1997 Society for the Advancement of Education
COPYRIGHT 2004 Gale Group