By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

According to a report from KECI NBC 13 in Missoula, Montana, the family of a volunteer firefighter killed in a 2008 crash has filed a lawsuit claiming that FedEx, the world’s largest express transportation company, and the owner of the semi truck that killed the victim were negligent in hiring the driver of the semi truck and should have known that the driver was “incompetent and unfit to perform the job that he was hired to perform based on his horrendous driving record.”

The volunteer firefighter had stopped to help another motorist and was sitting in his truck on the shoulder of an Interstate highway with his emergency lights on to create a safety zone for a one-vehicle rollover when the driver of the semi truck – who was later accused of driving too fast for conditions – slammed into the firefighter’s truck, KECI reports. The driver of the semi is facing a negligent homicide charge and pleaded not guilty. The matter is still pending in court.

The lawsuit filed by the family of the deceased volunteer firefighter includes a claim of “Negligent Hiring and Retention” against both FedEx and the owner of the semi truck claiming that the Defendants:

• Knew, or in the exercise of reasonable care should have known, that driver of the semi truck was incompetent and unfit to perform the job that he was hired to perform based on his horrendous driving record.
• Had a duty of reasonable care owed to Plaintiffs to hire and retain competent, qualified, and safe employees.
• Breached their duty of reasonable care by hiring and retaining the driver who was incompetent, unfit, and dangerous.
• Failed to exercise reasonable care, which was the proximate cause of injuries and death and damages suffered by Plaintiff.

To read the full text of the lawsuit, click here. The matter is still pending in court.

Every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring, according to ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ a comprehensive guide produced by background check firm Employment Screening Resources (ESR). The legal description of the duty of care – “due diligence” – means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.

If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called “negligent hiring,” which is the flip side of “due diligence.” If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.

Understanding how due diligence is associated with the liability for negligent hiring is critical for any employer. If a bad hire does something to force an employer to defend in court, then an employer must show how it took appropriate measures of due diligence. Employers that do not perform due diligence are sitting ducks for litigation, including attorneys’ fees and big damage awards.

Employers that implement and follow a Safe Hiring Program (SHP) show due diligence measures that are a powerful legal protection. While the cost of exercising due diligence through a SHP is usually very modest, employers need to measure the risk of hiring blind with the risk of litigation and attorney fees stemming from a single bad hiring decision that may cause injuries and death.

For more information on background checks and negligent hiring, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Sources:
http://www.nbcmontana.com/news/25122686/detail.html
http://www.nbcmontana.com/download/2010/0922/25122750.pdf

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

Some experts believe that an emerging trend of women as workplace killers may be indicated by recent cases including a September 2010 incident in which a woman allegedly killed coworkers at the baking plant in Philadelphia where she worked after being suspended from her job.

A story on The Philadelphia Inquirer website about the incident reveals that  although women commit fewer than 5 percent of homicides and assaults in the workplace – and are much less likely to kill than men as a rule – several high-profile cases of women killing in the workplace have occurred in the past few years.

• February 2010: A female professor was accused of killing three colleagues and wounding three others after being denied tenure at a university in Alabama.
• March 2010: A female supermarket worker in Florida fired for threatening to kill a coworker returned to work and made good on her threat.
• January 2006: A female former U.S. Postal Service employee killed six colleagues and then herself at a mail-sorting plant in California.

These past cases, combined with the most recent case in Philadelphia, could indicate a possible trend emerging of women committing more acts of workplace violence, according to some experts on the subject.

A teacher at the FBI Academy and author of books on crisis management and violence is quoted as asking “Is it too early to call it a trend, or is it just an anomaly?” in the Inquirer story, adding that he “cannot recall a one- or two-year period in which we’ve had as many women with multiple victims.”

In addition, a study by the University of Tennessee included in the story found that women – although they make up more than half the U.S. population – committed only 15 percent of homicides,  showing that they are much less likely to kill than men. When women do kill, the same study also found they are more likely to choose more “personal” targets such as spouses, intimate acquaintances, or relatives.

According to the U.S. Bureau of Labor Statistics, there were 521 workplace killings in the United States in 2009, 420 of them committed by gunfire. The bureau did not have information on how many were committed by women.

While the term  “workplace violence” is appropriate for a quick definition or diagnosis of a problem, fully defining all aspects of  “workplace violence” can be nebulous at best. Many employers loosely define workplace violence as:

• Assaults, other violent acts, or threats which occur in or are related to the workplace and entail a substantial risk of physical or emotional harm to individuals, or damage to company resources or capabilities.

While this definition covers a fair degree of actions, a better interpretation should be used in order to create an effective, defensible policy for employers. A better definition of workplace violence should account for the type of offense, circumstance — where and when an incident occurs, and whether it is considered to be “on-the-job” — and party or parties involved. Workplace violence can take place anywhere employees are required to carry out a business-related function.

While many acts of workplace violence are caused by external parties, such as robbery in the workplace by a stranger, recent concerns over workplace violence center on workplace violence carried out by existing employees. These internal incidents of workplace violence leave employers largely liable for any problems that occur in the workplace under the “Negligent Hiring Doctrine” dictating that employers can be held liable for damages if they knowingly employ persons known to pose a potential threat to co-workers or the public.

That said, the question arises — how can an employer identify a potentially problematic employee? The problem is that there is no magic formula that tells an employer in advance who will and will not be violent. Predicting future violence is a matter of considerable controversy. However, experts have found some factors that are present in many cases of workplace violence. One important factor is a history of past violence.  For that reason, pre-employment background checks are widely regarded as an effective screening procedure because the process serves three major functions:

• 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, by making it standard policy to screen all job applicants on their way into the company, 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.
• Third, pro-actively communicated background screening practices cause applicants to opt-out by discouraging prospective jobseekers with criminal or problematic backgrounds from applying.

However, there is more to preventing workplace problems than screening at the door. Lives of employees can change. A person who checked out in an initial screen may over time develop the traits or behaviors indicative of a potentially violent employee. It is up to the employer to maintain a constant eye on conditions and events in the workplace — to stay aware of employee attitudes and concerns in order to ensure the safety and security of everyone involved.

For more information about background checks and workplace violence, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://www.philly.com/philly/news/102713124.html

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

According to a post on The Hollywood Reporter, Esq. blog, the family of deceased singer Michael Jackson has filed a lawsuit against event production company AEG Live and others claiming they are responsible for the pop idol’s death because his contract with AEG for the planned “This Is It” tour created a legal duty to keep him healthy. 
 
As part of the lawsuit, the Jackson family accuses AEG of the “negligent hiring” and retention of Dr. Conrad Murray to care for Jackson in advance of the concerts instead of his usual doctor, the blog notes. Murray later allegedly administered the drug Propofol to Jackson without necessary resuscitation equipment or nursing support, and the singer died with the drug in his system.

With regard to the ‘Negligent Hiring’ cause of action, the complaint filed in Los Angeles Superior Court on behalf of the family includes verbiage claiming that:

• In undertaking to hire Murray, AEG performed absolutely no diligence in investigating or checking into Murray’s background, specialties, ability, or even whether he was insured, which it had a duty to do. In choosing to hire and employ a physician to treat Jackson, AEG undertook to act, and it needed to do so reasonably. AEG did not act reasonably and breached its duty.
• During the course of Murray’s treatment, it became clear to AEG that Jackson was not doing well at all. AEG did nothing to terminate Murray and instead negligently retained him as an employee, and in so doing violated its duty of care.  AEG insisted that Jackson continue treatment with Murray and receive no treatment from other physicians, a further breach of its duty of supervision.

Along with negligent hiring, training and supervision, the complaint calls for unspecified damages for breach of contract, fraud, and negligent infliction of emotional distress. The matter is still pending in court.

According to ‘The Safe Hiring Manual – How To Keep Criminals, Terrorists, and Imposters Out of Your Workplace’ by Lester Rosen, founder of San Francisco area background check firm Employment Screening Resources (ESR), every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring. The legal description of the duty of care – “due diligence” means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.

If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called “negligent hiring,” which is the flip side of “due diligence.” If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.

While most employers obviously will not hire applicants they know are dangerous or unfit for a job, it is the “should have known” part that gets employers into difficulties.

For more information about due diligence and negligent hiring, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.

Sources:
http://thresq.hollywoodreporter.com/2010/09/michael-jackson-lawsuit-aeg.html
http://reporter.blogs.com/files/jackson-2.pdf

By Les Rosen, Employment Screening Resources

In an article on background checks posted on  Workforce Management in January, 2010, it was suggested  that “Employment and criminal checks also do little to screen out those who commit fraud.”  The reason is that statistics from a  2008 report by the Association of Certified Fraud Examiners based on 959 cases of workplace fraud showed that  Only 7 percent of fraud perpetrators have prior convictions, and only 12 percent have been previously terminated by an employer for fraud-related conduct. 

This is a good demonstration on an often use quote about statistic:  “Do not put your faith in what statistics say until you have carefully considered what they do not say.”  

The article overlooks a critical fact that the use of screening keeps would be embezzlers out of a positions of trust where they handle finances in the first place.  Fraud professionals certainly recommend background checks because it is the first line of defense that keeps former embezzlers out of positions of trust in the first place. As professional screeners, Employment Screening Resources (ESR) has saved many organizations from hiring former embezzlers and thieves for positions of trust  involving finances. However, there is no way to measure the numbers of frauds that are averted due to background checks.  The argument in Workforce is  like arguing flu shots are worthless because people who get the flu shots may still gat a flu.  An accurate assessment of the viability of a tool needs to include what would have happened if the tool was not used.  

The article goes on to suggest that screening for criminal convictions may also be ineffective in reducing workplace violence. That is because, according to the article, contrary to popular belief, the majority of workplace violence incidents are not committed by new hires with criminal convictions. Instead, they result from robberies committed by perpetrators from outside the firm, according to the Bureau of Labor Statistics. 

The suggestion that because most workplace violence is external shows screening of applicants is ineffective is equally illogical.   Screening is used to screen the workforce.  Even if employee violence is not the major cause of workplace violence, it is still a  significant cause.   Experts agree that a common denominator behind many acts of workplace violence by employees is a prior history of violence. That is certainly not true 100% of the time, but it is significant factor. 

Suggesting screening is not effective because outsiders cause the majority crimes is like arguing that healthy habits are a waste of time because sometimes a healthy person comes down sick anyway. When there is an act of workplace violence that could have been prevented by screening that results in a lawsuit against an employer, it is doubtful that any jury will buy that argument suggested in the Workforce article.    To the injured worker, or the to the family of someone killed by an act of preventable workplace violence by an employee, the suggestion that screening is a waste of time will certain ring hallow. 

This argument brings to mind another quote about statistics: “Then there is the man who drowned crossing a stream with an average depth of six inches.” 

Once again, statistics can lead down a very wrong road.

The  Workplace article is at: http://www.workforce.com/archive/feature/26/21/11/index.php (may require sign-up and log-in)

For more information on why background checks are mission critical tool for employers, see www.ESRcheck.com

By Les Rosen, Employment Screening Resources

2010 Trends in Screening–Trend Two:

Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.   This is the SECOND of the ten trends ESR will be tracking in 2010.  The ten trends will be released over the next three weeks:

2.  More lawsuits including class action litigation over accuracy, privacy, and consumer rights: 

News stories in 2009 blasted the screening industry for inaccurate reports, and it appears that lawsuits are on the rise and will continue in 2010.  It is not surprising, since screening has become a large industry, and enough people have been the subject of screening reports that the whole area has come to the attention of plaintiff’s lawyers.  In addition, 2009 saw class action lawsuits for violation of the procedures under the FCRA, and there is every reason to believe that screening firms and employers can expect more of the same.  The bottom line is that a Background Check is a highly legally regulated professional service, and it is important to ensure that a supplier of this service understands the legal framework and, further, approaches the screening process as a professional service, and not just as a data provider.