The best and easiest way to avoid employee lawsuits is—duh—don’t hire troublemakers. But that’s easier said than done.
First, there’s the positive side—hire people that fit, that are well-qualified, and that will be happy in their jobs. “Happy people don’t sue,” one expert says.
And there’s the other side of the coin—avoiding the troublemakers who are either itching for an excuse to sue, or who are likely to do things that make others sue. (To harass, for example.)
Many managers take the care necessary to conduct meaningful interviews and then drop the ball on background checking. Time after time, managers who trust their intuitions find out too late that they’ve made a mistake. Their new hire—who was impressive during the interview—turns out to be dishonest, undependable, drug-addicted, incompetent or, worse, violent.
Identify and Reject
Fortunately, most problem employees can be identified and weeded out during the hiring process. And it’s far better to keep them out of your organization than to have to deal with them after they are hired.
More often than not, says one attorney, when he goes back into the work history of an employee who has sued or who has caused a lawsuit, he finds clear evidence of prior problems:
- Employees who sue often have sued before.
- Employees who commit violence often have committed violent acts in the past.
- Employees who harass or who make trouble often have harassed or made trouble for other employers.
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Evidence Is Often in Plain Sight
Often evidence indicating a troublemaker is right on the application or the résumé. There may be gaps in the employment history, or a number of jobs that lasted only a few months, or “red flag” reasons for leaving prior jobs, such as “poor management,” or “disagreed with policies.” Perhaps there are good explanations, but these are warning signs—follow them up with thorough questioning during your selection process.
Evidence Is Readily Available
In other cases, information that would cause you to reject an applicant is readily available from outside sources—phone calls to former supervisors and routine background checks—but only if you make the calls and request the background checks.
Listen During the Interview
Candidate answers during the interview often raise red flags. Do you get vague answers regarding duties and accomplishments? Is the candidate unable to explain gaps in employment or reasons for leaving jobs? Follow through for details. Ask what, why, who, where, when questions.
Liability for Poor Hiring Decisions
What liability might you face if you don’t take due care in the hiring process?
Negligent hiring. If you knew, or should have known, that an applicant was unfit for a job or had a propensity toward violence, but you hired the person regardless and the person harms someone, the person who is hurt may sue you for negligent hiring.
Negligent retention. Similarly, if you become aware that a current employee is violent and you fail to discharge the person, you may be liable for negligent retention.
The best way to avoid liability for poor hiring decisions is to take extreme care in the hiring process.
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Criminal Background Checks
Both federal and some state laws require criminal background checks for certain jobs.
Federal law. Federal law requires:
- Background checks for applicants for childcare jobs with federal agencies and contractors. This requirement covers jobs in education, day care, foster care, residential care, and rehabilitative care.
- Fingerprinting of securities exchange employees, including dealers and brokers.
- Background checks on truck drivers and on employees who will have access to nuclear power plants.
State law. Some states specifically require employers to run criminal background checks on job applicants. States have traditionally required background checks on law enforcement applicants, security personnel, and teachers. But since the early 90s, state legislatures have widened the scope of jobs for which checks are required, adding jobs that involve work with vulnerable populations, such as children, the developmentally disabled, and incapacitated adults. Check the laws of your state.
In tomorrow’s Advisor, more on the tricky business of background checks—plus an introduction to the “FMLA Bible.”
When hiring employees, it’s important to trust your gut – not to the exclusion of all other evidence, of course, and never in a way that reinforces illegal stereotypes. But if you’re getting a bad vibe about a potential hire, don’t just brush it off – factor it in as one more component in your decisionmaking process.
I had your OSHA book and returned it…now looking at another I realize that it was a mistake to return yours. Do you still have the free 30 day trial? Frankly, I had been too busy to even look at it so it was returned without it being properly looked at.
Thanks,
A large number of companies (and mine is included in this category) only provides the name, title, and dates of employment, period, for employment queries. We have a published policy on this practice.
In addition, several states in my region now have or are in the process of passing laws that indicate that we cannot use a conviction as grounds to eliminate a potential employee unless the conviction is job related. In many cases, that will be difficult to prove the causal effect on the job.