Workplace Violence and Negligent Hiring: How Background Checks Can Reduce Risk

When you think of legal action against employers for workplace violence, you may immediately think of workers’ comp claims or OSHA charges, but actions for negligent hiring also make up a large part of employer risk.

The Bureau of Labor Statistics estimates that in 2014, there were 16,110 non-fatal cases of intentional injury which required days away from work in private industry. Workplace violence—including assaults and suicides—also accounted for 16 percent of all work-related fatal occupational injuries in 2014.

In order to reduce the risk of violence in the workplace, employers should start at the beginning and ensure they are hiring people less likely to commit violent acts.

Conducting fair and proper background checks

Pre-employment investigations and background checks are important to verify the accuracy of information provided by an applicant and to ensure that an applicant is best qualified. A thorough pre-employment investigation is also a preventive measure that enables employers to determine if a candidate’s background indicates a possible safety threat or injury to other employees.

When conducting pre-employment investigations, employers should consider the following general guidelines:

  • Use pre-employment investigation tools—including cognitive tests, work sample tests, medical examinations, credit checks and criminal background checks—that are reasonable, appropriate and relevant to the position for which the applicant is applying.
  • Pre-employment investigations should be consistently implemented with all candidates being considered for the same position.
  • Pre-employment investigations should be conducted by persons with special training such as a reputable investigative service.
  • All information must be evaluated in compliance with the Fair Credit Reporting Act (FCRA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and any other applicable state and federal law.

It’s important to note that despite “ban the box” rules (removing the criminal history checkbox from job applications), employers can and should still conduct criminal background checks after an employment offer is made. Learn more: When to Ask About Criminal Convictions

By conducting far and appropriate background checks, employers can help mitigate many of the risks associated with workplace violence.

Mitigating negligent hiring risk

Employers have a duty to use reasonable care when hiring employees to ensure that they do not hire individuals who may pose a threat of injury to fellow employees, members of the public or the workplace in general. In many cases, negligent hiring claims stem from acts of violence and sexual assault against co-workers.

When an employer fails to conduct an adequate pre-employment investigation—including, as circumstances warrant, reference checks, post-employment verifications, credit checks, and criminal record checks—that employer risks the potential for negligent hiring liability for injuries caused by a disruptive or violent employee to third parties.

While the legal standards vary from state to state, damages may be awarded for actual injuries and for pain and suffering; punitive damages are not uncommon. In addition, under state workers’ compensation laws, employers may be required to compensate victims for on-the-job violence.

To help avoid negligent hiring claims, employers should:

  • Verify an applicant’s work history. Be alert for long gaps in an applicant’s work history, which may have been for periods of incarceration.
  • Attempt to obtain reference information from former employers.

  • Increase the scope of the pre-employment investigation when hiring for positions where there is greater risk of harm to the public or to fellow employees.
  • Consider criminal record checks in compliance with all applicable state and federal laws. Although some costs are involved, they are insignificant when compared to the potential liability for negligent hiring.
  • Document all pre-employment investigatory efforts, including nonproductive contacts with former employers.
  • Use effective interviewing techniques. During interviews employers should ask questions, such as:
    • “What is the reason for the gaps in your employment history?”
    • “Have you ever been involved in a work safety situation?  If so, what happened and how did you handle it?”
    • “Describe a recent stressful situation at work and how you managed through it.”

Reducing cybersecurity and active shooter threats

Workplace violence encompasses a lot of things, but, as both threats continue to grow, cybersecurity and active shooter situations are currently a huge concern for employers.

Take for instance, this story from Fortune, “A survey has shown that 20 percent of employees would sell their passwords, with 44 percent of them willing to do it for less than $1,000.”

Corporate passwords in the hands of hackers can do a world of hurt for both businesses and employees.

Active shooter situations are also on the rise. According to the Advanced Law Enforcement Rapid Response Training (ALERRT) Center at Texas State University, the frequency of active shooter incidents have continued to increase, nearly tripling from 2009 to 2012 as compared with the prior eight years, to 15.8 active shooter incidents per year. And often these are happening at businesses.

Both risks can be mitigated by conducing background checks and pre-employment investigations to help you choose the best possible hires. Learn how hiring the wrong person can cost you.

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