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by Audra Jenkins, PHR | March 31, 2009

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Where is workplace violence going to break out? We generally don't know until it's too late. While some incidences of workplace violence are random, some can be prevented with the proper intervention, which begins in the staff selection process. Employers can uncover potentially violent employees by conducting pre-employment screenings and background investigations.

Remember, before conducting any type of pre-employment investigation, your company must obtain written consent from the candidate and follow all of the requirements of the Fair Credit Reporting Act (FRCA).

Employment History
Companies are cautious about what information to divulge when contacted for an ex- employee's reference. Generally, employers may ask:

  • What were the employee's dates of employment?
  • What was the employee's position or job title?
  • Did the employee work well in groups or teams?
  • Is the employee eligible for rehire?

Criminal Records
Employers can obtain an applicant's driving records, as well as information from state and local law enforcement agencies. However, employers should use this information cautiously. It's important to consult with an attorney when any criminal data is retrieved and reviewed. Legal counsel provides the best guidance in determining whether a criminal activity is a felony or misdemeanor.

Criminal records can provide a blueprint of a candidates' past violent actions. For example, if a job candidate with an exemplary work history has a criminal record of drug use, the company may want to probe further before extending an offer. The FCRA provides very specific guidelines you must follow if you wish to obtain an applicant/employee's criminal records, or any other consumer reports regarding the individual. ~

However, just because an employer runs background checks on applicants for certain positions doesn't mean the employer must run those checks on all applicants. However, the employer should be sure that it determines which candidates require background checks based on the position applied for (not the person applying).

For example, an employer will not want to run checks only on applicants of a particular race or gender. However, an employer can decide to run checks only on applicants for an accounting position, as opposed to customer service positions.

An employer cannot ask about an applicant's arrest record, no matter what the position. The Equal Employment Opportunity Commission (EEOC) expressly prohibits using arrest records for making employment decisions. However, an employer may ask about an applicant's conviction record, under certain conditions.

The employer must demonstrate a "business necessity" for using an applicant's conviction record as a basis for employment decisions. To show business necessity, employers are required to consider:

  • The type of offense and its severity;
  • The amount of time that's passed since the offense occurred; and
  • How the offense relates to the job.

For example, an accounting firm may be justified in asking an applicant about a previous conviction for embezzlement, and in making the conviction a factor in its decision. In this case, the crime -- mishandling money -- is closely related to the job.

The severity of the offense is also an important factor. For example, a retailer hiring a person to deliver appliances would probably be justified in asking the applicant about a violent crime conviction, and using that information in its hiring decision. If the employer knew that the applicant had been convicted of rape, and yet hired the employee for in-house, unsupervised work, the employer might be held liable if the employee later assaulted a customer.~

If you're considering having a criminal background check performed by a third party, such as a traditional credit-reporting agency, remember that there are specific rules that apply under both the Fair Credit Reporting Act (FCRA) and state law. Previously, under the FCRA, an employer was limited to checking criminal conviction records to the past seven years. Now, however, an employer may obtain those records without any time limitation.

If you decide that you would like to check an applicant's criminal, or credit history, remember the following:

  • Before you obtain a report, give the applicant a clear, written disclosure that you may obtain a consumer report and use it in making employment determinations; and
  • Obtain the applicant's written permission to obtain a report. This written authorization should be in a separate document from the rest of the application materials.

Once you have obtained the report, but before you take an "adverse action", such as refusing to hire the applicant, you must provide the applicant with a copy of the report, and a written notice of his rights under the FCRA.

  • If you are going to take "adverse action" against the applicant based in any way upon the information in the report you must:
  • Give the applicant notice of the adverse action;
  • Provide the applicant with the name and contact information of the Credit Reporting Agency you used;
  • Inform the applicant that the Credit Reporting Agency did not take the adverse action against the applicant;
  • Notify the applicant that he can dispute the findings of the Credit Reporting Agency by taking up the matter with the Credit Reporting Agency; and
  • Inform the applicant that he is entitled to a free report from the same Credit Reporting Agency, if he makes the request within 60 days.

If you're considering hiring the individual for a position that provides access to the elderly or children (e.g., in schools, daycare centers or nursing homes), your state may have specific requirements regarding performing criminal background checks. In fact, such a record check may be required.

In addition to these general guidelines, many states have their own rules regarding what questions you can ask on a job application, or in an interview. Be sure to learn your state's laws and/or consult with counsel. ~

Pre-employment screening and background investigations are critical to prevent negligent hiring and reducing workplace violence exposure. Companies should take proactive measures on the front-end to lower their chances of hiring violence-prone employees.

About the Author: Audra Jenkins is Managing Employees Editor for Firstdoor, a Web- based service providing critical insight on employee benefits, human resources (HR) management, and legal compliance issues. For questions or comments, contact editorial@firstdoor.com or visit www.firstdoor.com.

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Filed Under: Workplace Issues
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