The Guide to a Risk Management and Violence Program Success
Poor hiring practices can cost a company in lost productivity, theft, and at the extreme end, workplace violence incidents that can cost lives, damage the company’s reputation, and depress future earnings. Legal expenses for negligence lawsuits (for issues including negligent hiring, supervision, security, training, and retention) average $2.2 million, according to Rebecca Speer, a workplace-violence attorney. But more devastating is the loss of life that violence in the workplace can cause. To minimize the risk of such incidents, companies need to implement a well-crafted hiring process that screens out violence-prone candidates before they become employees. A complete hiring process to screen for violence-prone behaviors should include most, if not all, of the following items: self-opt-out selection techniques, strategic questions on the employment application, psychological assessments, background and reference checks, and behavioral interview questions.
Violence Free Workplace Through Self-Selection
One of the simplest self-opt-out techniques is to declare the organization a “violence-free workplace,” just as some organizations proclaim that they are a drug-free workplace and therefore test all applicants for drugs. If, from the outset of the hiring process, a company makes clear that its selection process focuses on individuals who will support efforts to keep the environ-ment free of violence, individuals who have been used to displaying aggressive, hostile, and violent behavior will go elsewhere or will join the company with the understanding that this behavior is not acceptable. To become a violence-free workplace, employers might make a proclamation similar to the following:
- We assess each candidate for behaviors indicating that he or she may pose a direct threat to others.
- We conduct background and reference checks on all applicants.
- We have zero tolerance for all violence, threats, and other behaviors that imply the intent to harm anyone. Violations are dealt with firmly.
This declaration should be supported by a workplace violence prevention policy that clearly articulates the firm’s philosophy and methodology for addressing workplace violence. The policy should be strongly focused on ensuring prevention rather than merely on procedures for responding vigorously after something has occurred. After all, the ultimate proof of a risk management and violence prevention program’s success is that incidents do not occur.
Workplace Violence Reduction and Elimination Through Strategic Questions
The job application can be an effective screening tool. In addition, the right questions can alert undesirable applicants to the screening factors, causing them to self-opt out before the company wastes resources on a background check. The application should include:
- A clear and visible statement that a background check will be required of all applicants prior to the offer of a job.
- A statement that providing false information on the application form is grounds for dismissal.
- A question specifically asking about periods of unemployment.
With regard to criminal activity, the company should go beyond asking about felony convictions. The application should also ask about misdemeanor convictions and plea bargains. There are many misdemeanors that a company should be aware of prior to making a hiring decision, such as battery without a weapon, violation of restraining orders, and possession of drugs below a specified quantity. Some other important questions to ask include:
- Did any conviction result in imprisonment? If yes, explain each conviction fully, stating when, where, and of what you were convicted, and the disposition of the case(s).
- Are you currently under arrest or released on bond or your own recognizance, pending trial for a criminal offense?
- Have you been convicted of driving under the influence (DUI) in the past five years?
- Have you been convicted of a crime, including a misdemeanor or traffic violation, in the past five years?
- Are you currently pending trial for a crime other than a misdemeanor or traffic violation?
As is the case with the entire employment application, a company’s labor attorney should review such questions to ensure compliance with state and federal laws.
Psychological Assessments: Trusted by Some, Feared by Others
Psychological and personality tests represent something of a dilemma for employers. On the one hand, testing applicants to verify or identify important skills, knowledge, and abilities is essential for increasing the odds of a successful hire and protecting a company from negligence liability. On the other hand, these tests have occasionally led to discrimination lawsuits since the late 1960s, and companies must be careful not to administer them in ways that will be deemed illegal. The Equal Employment Opportunity Commission (EEOC) and the courts have consistently held that preemployment selection tests must be structured in accordance with the Uniform Guidelines on Employee Selection Procedures, as interpreted and enforced by the EEOC. Meanwhile, employers should also take the Americans with Disabilities Act (ADA) into account when using preemployment selection tests. The ADA does not specifically prohibit psychological tests, but employers should be aware of the conditions or parameters that the ADA sets for their use.
The ADA allows employers to refuse employment to a person if a post-offer psychological test or evaluation establishes that the person poses a “direct threat” to the health or safety of others. In such cases, the employer must meet very specific requirements to establish that a “direct threat” exists. The company must be prepared to show that there is a significant risk of substantial harm, that the risk is specific and current–not remote or speculative–and that the assessment of risk is supported by objective medical or other factual evidence. In addition, the employer must show that the risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation. Although the EEOC Technical Assistance Manual on the ADA indicates that the direct threat can be to oneself or to others, the Ninth Circuit Court of Appeals has rejected this. It has held that the direct threat must be to the safety of others. Practically speaking, the company should not rely solely on psychological tests as the single determinant in assessing whether a direct threat exists, because in most cases the test results by themselves are not sufficient to meet the strict standards required to establish that an employee is a direct threat.
Background Screening: A Great Workplace Violence Deterrent
While testing is an attempt to predict future behavior, background checks are intended to reveal past behavior. They also show that the employer has made a good- faith effort to avoid hiring an employee who may later harm others. The courts have consistently ruled that employers can be held liable for negligent hiring if they do not check references, particularly when sensitive jobs are involved. It is, therefore, a prudent business decision to examine a candidate’s background and references to fully assess the person’s capabilities and employability and to limit the company’s liability if an incident later occurs. (Reference checks deal with past employment history and performance, while background checks refer to reviewing data in public records.) The extent of the background check depends on the nature of the work being performed, the person’s access to sensitive information, and the potential liability associated with incorrectly performing the job. Also relevant are the level, frequency, and manner of contact with the public or clients and the type of clients or public with whom contact is made.
It makes sense to conduct a credit check for a chief financial officer, but such a check is not warranted for a clerk in the secretarial pool. Similarly, a driving record check is appropriate for a chauffeur, while it might not be necessary for an office manager. The decision should be based on the relevance of the information to the job and the business necessity. To address legal issues related to the background check, employers should treat the process virtually the same as credit reference checking, which means full disclosure of intent to check background, disclosure of sources used, right to access of reports provided, confidential record keeping, and abiding by nondiscrimination requirements. Additionally, each type of background check–such as credit, driving records, court cases, bankruptcy, and criminal records–has its own specific legal guidelines regarding what can and cannot be done, and these legal requirements vary widely among states.
Background Screening Waivers
All candidates should first be asked to sign a reference check release and authorization form, to check past employment history and performance, with a liability waiver for former and prospective employers covering information provided. This will permit the prospective employer to conduct background checks and request copies of the candidate’s last two performance reviews. The form should also clearly state that refusal to sign it will disqualify the person from further consideration. A labor attorney should review and approve the form prior to implementation. Although all candidates sign a release form, background and reference checks should be performed only on finalists–those candidates who have been judged otherwise likely to qualify for the job.
The background check should begin with a check of past employment. For each candidate, the hiring manager should keep a log of references contacted, including whether the person contacted did not provide any information. Some employers have a policy of not providing information to avoid liability. They are responding to cases such as McQuirk v. Donnelly, a 1999 ruling of the U.S. Court of Appeals in which the court decided that an employer that gives a knowingly defamatory reference regarding a former employee is not immune from liability, even if the employee signed a waiver absolving former employers from legal responsibility in connection with references they provide. In this case, the appellate court agreed that the consent form was sufficient to protect any statements made by the previous employer, but it ruled that the release form violated California civil code by shielding a person from intentional criminal acts. The court ruled that the form allowed the previous employer to willfully commit defamation and inflict emotional distress without fear of liability. Therefore, determined the court, the release signed by the employee was not legally enforceable.
But the chilling effect this case may have on an employer’s willingness to provide information may be counterbalanced by an opposing trend: Courts have also ruled that former employers may be liable if they fail to warn a prospective employer of a problem with a candidate. The seminal case (Randi W. v. Muroc Joint Unified School District et al., No. S051441, California Supreme Court, 1997) involved a vice principal who had received glowing recommendations from three previous employers despite allegations regarding sexual advances toward students. In the new position, the vice principal molested a 13-year-old in his office. The student sued the former employers as well as the school for fraud and negligent misrepresentation, claiming that the recommendations were made with “actual fraud, corruption, and malice” because the defendants knew them to be false and knew that children could suffer injury because of the failure to warn prospective employers of the allegations.
Reviewing the case on appeal, the California Supreme Court concluded that while employers would not ordinarily be held accountable for failing to disclose negative information about a former employee, liability could be imposed if “the recommending letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a prospective employer or third person.” In addition, during the interview, prospective employers should ask for the names of people who should not be contacted for references. The interviewer should then ask why the candidate does not want these individuals to be contacted. That follow-up question can provide more detailed information about the candidate and help refine the focus of the reference check. For instance, if the problem was a personality conflict with a former supervisor, it might help the employer find patterns of similar problems at other previous employers.
Background Criminal History Check
Criminal history checks are also an important part of a background check. If a candidate has a criminal history, the employer must consider how that information will affect the hiring decision. Many attorneys share the view of Chrys Martin, an employment law attorney: “Companies should probably not take on the risk of hiring an ex-convict if they will be dealing with the public in person or handling money or sensitive documents.” This view is based on the rationale that if a company hires a person with a history of violence and the employee attacks someone, the organization’s liability is increased. However, when an organization uncovers an applicant’s past criminal conviction or history of violence, it must be concerned with balancing the need to avoid negligent hiring suits and workplace violence incidents with the need to avoid discriminating against ex-offenders.
The EEOC has set down three guidelines for determining whether there is a business necessity for refusing to hire an ex-offender. These guidelines require employers to consider the nature and gravity of the offense, the amount of time that has passed since the conviction or completion of the sentence, and the nature of the job held or being sought. If the decision not to hire an ex-convict is job-related–for instance, if a company refuses to hire people convicted of robbery for positions involving money handling–that decision would meet the EEOC’s criteria. However, in other circumstances, an ex-convict may be well suited to fill the position.
If a company decides to hire such an ex-offender, there are several steps it can take to protect itself from increased liability. But first, the employer should ensure that it has based its decision on a complete knowledge of every conviction, not just the most recent one. The company can speak with parole officers, the district attorney, and the candidate’s work-release officer. These officials can give the details needed to examine the person’s character and readiness for employment.
For instance, a conviction may look like nothing serious on paper, but it could have been a reduced charge based on a plea bargain. In addition, one might ask the parole officer whether he or she deems the person likely to recidivate and whether the person is subject to any work restraints. Another approach to reducing liability is to advise the potential supervisor of the situation and encourage him or her to consider the support that might be necessary to improve the odds of success. For example, if the previous conviction was for drunk driving, a company might pay for the employee to attend safe-driving and alcohol-abuse classes. The goal is to be proactive and take affirmative steps to reduce the likelihood of a problem, which could commensurately reduce the company’s liability. Though the risk of violating an employee’s privacy exists, if the supervisor legitimately tries to help and support the person and documents the steps and efforts made, the privacy concern will be minimal.
But if employers want additional protection when hiring ex-offenders, a U.S. Department of Labor program provides them with a $5,000 insurance bond “against losses stemming from theft, forgery, larceny, or embezzlement by the bonded employee.” The bond comes free of charge for the first six months after the employee is hired. Of the 40,000 workers who have been bonded under the program to date, only one percent have defaulted. While there are dangers inherent in hiring ex-offenders, the bottom line is that employees with criminal records commit less than 2 percent of workplace homicides. So if the situation is right and a company has assessed the risks, it should remain open to the possibility that the person has been rehabilitated.
Critical Traits Help in Defining a Potential Employee
Often, a person’s reactions to events are of more note than the events themselves. From a selection and hiring perspective, assessing how candidates react to events can offer important insight into their character and how they may act on the job. To gauge prospective hires’ reactions effectively, a company should determine what types of situations the person is most likely to face in the position and simulate them. Because collecting such data requires substantial time, the author suggests that “critical behavior traits” be identified during the regular process of creating job descriptions or added to an existing job description when that position becomes vacant–before the hiring process begins. In the process of identifying the critical behavior traits for each position, it is also important to thoroughly review any previous workplace violence incidents or situations involving conflicts that might have involved that position to determine which behaviors contributed to the problem or helped to resolve it. This information can help the company determine which behaviors it desires in a candidate and which it does not.
Having identified the critical behavior traits that are essential to performing the job successfully, an employer needs to design a set of interview questions that are specifically geared toward assessing whether a candidate exhibits the desired traits. Questions or exercises can be formulated with the help of in-house experts from human resources, security, risk management, safety, and other relevant departments or with the assistance of external professional resources.
To illustrate, consider a customer service representative position at a company that values projecting a positive image to customers at all times. The company has established the following critical behavior traits for customer service representatives: to be able to listen to upset customers, to always remain positive during the dialogue, and to defuse and ultimately resolve the situation so that the person with whom the employee is dealing remains a customer of the company.
To assess the ability to listen to customers, the interviewer might show the candidate a video depicting people arguing or in a conflict and have the applicant identify the dynamics involved, key emotional cues, and key reactions. Next, the candidate can be asked to identify the actions he or she would have taken to handle the situation appropriately. In addition, the interviewer should observe whether the applicant practices reflective listening skills during the interview and other assessment activities.
Critical Traits Assessment
Once the questions have been developed, the next task is to determine how the responses will be assessed. The employer should assign ratings for responses. It is not practical to try to identify the full universe of possible positive responses, so the focus should be on the critical factors that are considered essential for a favorable response.
Once the interviews have been completed, the persons responsible for making the hiring decision should meet to discuss each applicant, compare applicants’ responses with the desired responses, and identify a final rating for each person. This dialogue should encourage the sharing of each decision-maker’s perspective on how the person responded and why the interviewer chose to rate the response in a certain manner. These discussions often prove to be interesting, contentious, and informative. Biases, lapses in listening, assumptions, misconceptions, and so on are brought to light and must be dealt with before the group finalizes a candidate’s rating.
The Correlation Between Background Screening and Discrimination
One final point in interviewing is that employers walk a tightrope when they encounter an applicant with the potential for becoming violent who is also suspected of having a mental disability. The ADA prohibits discrimination against individuals who are believed to be disabled if they are otherwise qualified to perform the job. If a mental disorder that may cause violent behavior is discovered in an otherwise qualified person, the company may need to make reasonable accommodations for that person to perform the job he or she is seeking. However, Mary Russell, partner in the Labor and Employment Law Practice Group at the San Diego-based firm of Luce, Forward, Hamilton & Scripps, says that not all mental or emotional problems qualify under the ADA, and it is difficult to accommodate someone with a propensity for violence.
Unfortunately, should an employer face this situation, it will be forced to balance the conflicting legal requirements of providing a safe and secure work environment with not discriminating on the basis of a perceived disability. Either choice might expose the company to legal liability. The company must also examine the consequences of taking a stance for employee safety and security in light of other legal issues, such as personal privacy and defamation.
Providing a Safe Work Environment is a Primary Respobility of Every Company
The rights of potential perpetrators must be balanced against those of potential victims. Carefully screening job candidates in the hopes of excluding those who may be prone to violence is the first step toward meeting that responsibility.
William B. Nixon is the president of the National Institute for the Prevention of Workplace Violence. He is a member of ASIS. He is also the author of The Complete Hiring Guide to Screen for Violence Prone Individuals, published by the National Institute for the Prevention of Workplace Violence, Inc., Lake Forest, California. @ For more information on this topic, visit the Institute’s Website via Security Management Online.
Don’t Tempt Fate with Temps
One category of employees often overlooked is those contracted through temporary agencies. Every company should be sure to include temporary agencies in the reference-checking process by requiring that the agencies check references on people referred to the company.
Most agencies do not automatically include background checks. Thus, the company should require such checks as a part of the service contract. The agency should also be required to advise the employer of any unusual circumstances regarding any temporary worker being referred.
One avenue for verifying that checks are being performed is to require the agency to provide a monthly report of referrals made, including confirmation of references, status, rating scale, and so forth. Viewing the report on a monthly basis, an employer can see that reference checking is actually happening in real time. If a problem is detected, the company can take steps to ensure compliance in the future or switch to a new agency.