Screening Out Problem Employees

By Lester S. Rosen

It is the ultimate nightmare for every human resources, security or risk-management professional: the phone rings late Friday afternoon as you wind up loose ends from yet another challenging week and look forward to a quiet weekend. A panicstricken voice informs you that Pat in accounting has assaulted a coworker and threatened to harm a supervisor. Your workplace has become another statistic in the workplace violence epidemic.

As the mess is being sorted out, it becomes known that Pat was not only stealing money, but Pat also had a prior criminal record for assault.

Everyone from the company CEO, CFO and corporate attorney to managers, supervisors and coworkers, will be asking the same question: How did Pat get hired in the first place? If the matter results in litigation, you will also find that in addition to your normal duties you now have a second, and nearly full-time, job dealing with the discovery process in litigation and the organizational fallout.

The statistics on the consequences of even one bad hire are chilling. If an assault results in litigation, the legal fees for just one incident of workplace misconduct can easily soar into six figures, and jury awards can be astounding. A firm can be sued by injured coworkers, members of the public who were harmed or even the bad employee may claim wrongful termination. The financial cost to businesses from workplace violence is in the billions according to some sources. It has been estimated by governmental sources that two million Americans are the victims of some degree of workplace violence every year.

Identifying Problem Employees Before Hiring
Employers concerned about the impact of workplace violence often ask: how can an employer identify a potentially problematic employee?

Herein lies the problem. There is no magical formula that tells an employer in advance who will and will not be violent. Predicting future violence is a matter of considerable controversy. However, most experts agree that a history of past violence is a common factor in many workplace violence incidents. For that reason, pre-employment background checks are widely regarded as an essential tool to combat workplace violence because the checks screen out applicants who are dangerous or unfit for employment by virtue of a past criminal record.

Background screening is not a guaranteed solution. It is always possible that a perpetrator of workplace violence has not yet been charged with any criminal conduct. However, the background screening process serves some critical functions for employers.

First, screening job applicants can bring to light problems in a potential hire’s past, such as a history of violence, harassment or extremely inappropriate behavior.

Second, proactively communicated background screening practices cause applicants to opt-out by discouraging prospective job seekers with criminal or problematic backgrounds from applying. This idea is similar to the way ‘We Test All Applicants for Drugs’ has a chilling effect on drug users applying for positions.

Third, by making a standard policy to screen all job applicants, employers demonstrate due diligence, showing that all reasonable efforts have been made in determining whether or not the applicant poses a threat to the company or to the public.

Studies by the background screening industry show that up to 10% of job applicants may have criminal conviction records relevant to the hiring process. Without a screening program in place, it is a near-statistical certainty that a company is going to hire someone with a criminal record. Contrary to popular perception, there is no national criminal computer available to private employers. Criminal records are normally checked by having qualified researchers visit courthouses in counties where an applicant has lived or worked. Because there are more than 10,000 courthouses in America where records are kept, most employers outsource this task to qualified firms that specialize in preemployment screening.

Other screening tools can include social security number traces and driving records. The social security number trace may indicate additional counties to search for criminal records and the driving record can reveal other potential problems such as drug or alcohol abuse. Some employers may wish to check civil records that may give indications relevant to workplace safety, such as allegations of violent behavior or violation of a restraining order. Federal checks of civil and criminal records are additional tools available.

Another important tool is resume verification. Job applicants often use their resumes as a marketing tool, but the hiring company can find itself in trouble when resumes exceed the bounds of honesty. Many national screening firms estimate that up to 30% of resumes contain material falsehoods that pertain to previous employment, education and professional licenses.

Contacting past employers to ask about incidents of past violence may be difficult, given the reluctance of many past employers to give any information beyond dates of employment and job title. That is another reason why performing a check for past criminal acts is a critical step.

Even if a past employer will not give details about job performance when asked, just verifying the job dates and job title are crucially important. It verifies the accuracy of the applicant’s employment history and confirms where an applicant has been. An employer needs to know where an applicant has been in order to search for criminal records. The application or resume should also be examined carefully to determine if there are any unexplained gaps in the employment history. If there is a gap, the employer or screening firm may not be searching for records in all of the appropriate courthouses.

Common Employer Concerns
Even with all of the advantages of a screening program, many employers still have questions and concerns about implementing background checks. Described below are seven common concerns that employers express.

Is screening legal?
Yes. Employers have an absolute right to conduct lawful pre-employment screening in order to hire the bestqualified candidates. A federal law called the Fair Credit Reporting Act (FCRA) balances the right of employers to know who is being hired with an applicant’s right of disclosure and privacy. Under this law, the employer first obtains the applicant’s written consent to be screened. In the event negative information is found, the applicant must be given the opportunity to correct the record. Employers should set up a consistent policy so similarly situated applicants are treated equally. A qualified screening company will assist an employer with legal compliance issues.

Does screening invade privacy?
No. Employers can find out about only those things that an applicant has done in his or her “public” life. For example, checking court records for criminal convictions or calling past employers or schools does not invade a zone of personal privacy. Employers are looking only at information that can be seen as valid, non-discriminatory predictors of future job performance. Employers should also take steps to maintain confidentiality within an organization, such as keeping background check reports in a separate file from the personnel files.

Is screening cost-effective?
Yes. A pre-employment screening will typically cost less than the expense of a new employee on his or her first day on the job. That’s pocket change compared to the damage one bad hire or one incident of workplace violence can cause. In addition, employers typically only screen an applicant if a decision has been made to extend an offer, so not all applicants are screened. It is ironic that some firms will spend hours shopping for a computer bargain and at the same time try to save money by not adequately checking out a job applicant, which represents an enormous investment. The bottom line is that problem employees usually cause employee problems, so any money spent in an effort to avoid problems in the first place is money well spent.

Does screening discourage good applicants?
No. Employers who engage in screening do not find that good applicants are deterred. Good job applicants have a desire to work with qualified and safe coworkers in a profitable environment. A good candidate understands that background screening is a sound business practice that helps a firm’s bottom line and is not an invasion of privacy or an intrusion.

Does screening delay hiring?
No. Background screening is normally performed in just 48 to 72 hours. Keep in mind that most of the information needed is not stored in databases, but must be obtained by going to courthouses or calling up past employers or schools. Occasionally there can be delays, such as previous employers who will not return calls, schools that are closed for vacation or a court clerk who needs to retrieve a record from storage.

Furthermore, an organization that is careful in its hiring practices should find a lower rate of “hits” during background checks. There are a number of steps a firm should take to ensure safe hiring well before a name is submitted to a background company. These techniques include making it clear your firm does background checks in order to weed out bad applicants, knowing the “red flags” to look for in an application and asking questions in interviews that will filter out problem candidates.

Is screening difficult to implement?
Not at all. For an overburdened HR, security or risk-management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. In a short period of time, a qualified preemployment screening firm can set up the entire program and provide all the necessary forms. Many firms have secured Internet-based systems that speed up the flow of information and allow an employer to track the progress of each applicant in real time.

How do you select a service provider?
First and foremost, an employer should look for a professional partner, not just an information vendor who is selling data at the lowest price. An employer should apply the same criteria that it would use in selecting any other provider of critical professional services. For example, if an employer were choosing a law firm for legal representation, it would not select the cheapest—it would clearly want to know the selected firm is competent, experienced and knowledgeable, as well as reputable and reasonably priced. The same criteria should also apply to critical HR services. A screening firm should have an understanding of the legal implications of background checks, particularly the federal FCRA and applicable state laws. An employer should only utilize firms that have committed to professional standards, as evidenced by membership in the professional organization for background screening firms, the National Association of Professional Background Screeners (www.NAPBS.com).

Both employers and applicants need to accept that pre-employment screening is an absolute necessity in today’s business world. Pre-employment screening is a key element in any program designed to prevent workplace violence.

Lester S. Rosen is an attorney at law and president of Employment Screening Resources, a national background screening company (www.ESRcheck.com). He is a consultant, writer and frequent presenter on safe hiring, pre-employment screening and legal compliance. He is also an experienced criminal attorney and has and testified in court as an expert in safe hiring. He is the author of The Safe Hiring Manual–the Complete Guide to keeping Criminals, Terrorist and Imposters out of Your Workplace (512 pages/Facts on Demand Press).