Dealing with Workplace Violence

With the latest workplace shootings fresh in our minds, employers may turn to the obvious question:  Have we done enough to prevent and promptly respond if it happens here?  Employers must strike a balance between generating hysteria and encouraging vigilance. 

Here are some things employers can do:

Use effective hiring practices to screen out potential violence:  Screen incoming employees for past incidents of aggressive behavior.  In screening processes, make sure that you are asking questions about past incidents, but in a way that targets the behavior, and not potential mental illness.  Ask if the employee was ever disciplined for fighting with co-workers or clients, if the employee ever violated workplace safety rules, etc. Idaho statutes provide immunity from lawsuits for employers who share information upon being asked. (PS Congress also is considering a federal law providing a safe harbor for employers who report violent behavior.)  Also, consider conducting a criminal background check.  While you must be careful to avoid discrimination charges (more on that in a future blog post) by conducting a background check you will be aware of whether there are aggressive or violent tendencies in the candidate that could lead to violent behavior in the workplace. Screen out the behavior, not the cause.

Implement a workplace behavior policy that addresses violence and bullying:  Screening techniques are helpful, but anger might build over time, which means that an existing employee could begin to exhibit violent tendencies.  To assist in such situations, the employer should be proactive. Have a policy in place that governs respectful workplace behavior, not just related to discrimination, but which also addresses angry behavior, fighting, aggressive behavior, threats, etc.  Allow employees to report such behavior by promising that they will be protected from retaliation. Have multiple avenues for employees to report concerns.  A bullying policy can address many of these issues.  Make sure to include behavior that is verbal or physical.  Address the use of profane language, insults, humiliating another person, destruction of property of another, name calling, ridicule, and can even include gossip and spreading false rumors.  Do not assume that an employee is mentally ill, instead approach this issue from the standpoint of regulating the inappropriate behavior.  Then, when someone violates the policy, impose consequences on everyone, not just one employee.  Make sure your discipline is consistent. 

Also train managers on proper action to take if the employee indicates the aggressive behavior is due to a disability.  In a 2015 case, a worker reported he was having homicidal thoughts, and asked for treatment.  No behavior had yet manifested in the workplace.  Instead of offering mental health treatment, the employer waited three weeks, then terminated without clearly identifying the reason other than the employee’s disclosure.  The trial court allowed to case to go to trial, indicating that the case would test the competing policies of accommodating disability and protecting the workplace. 

Train managers on what to look for in spotting potential threats:  Train supervisors on what to do when they receive a complaint, or how to spot problem behavior before a complaint arises.  Bring in an expert in violence prevention and train managers on what to look for in behavior that is potentially violent.  Have the expert train managers in techniques to deal with anger in the workplace.  Put protocols in place to assure the manager’s safety in addressing the angry employee, such as using the buddy system during confrontations, meeting with doors open, having a plan for a quick exit, knowing when to call 911 for help, etc. Consider partnering with local police agencies to review your workplace for safety and security. Also consider bringing in a professional to consult on investigations into violent behavior, to help assess the risk. 

Workplace violence seems to be on the rise, and must be addressed, but these three areas are good ways for employers to be proactive in preventing and assessing risks.  

Careful Hiring Can Cause Additional Headaches if You Don’t Know the Law!

A responsible employer may be conducting routine background checks prior to hiring.  This is a standard practice in business, making sure you know what you are getting when hiring an employee.  But some types of actions that an employer can take in conducting a background check may cause more headaches if not done properly.  Here are some things to keep in mind.

The Fair Credit Reporting Act

If you use any third party to conduct a criminal or other background check, you must comply with the Fair Credit Reporting Act.  Amazon and Staffing Management found this out the hard way when they were sued in mid-2015 in a class action lawsuit seeking damages for all applicants rejected based on a criminal background check.  While the suit has not yet been certified or resolved, the damages could be astronomical.  What did Amazon allegedly do wrong?  They hired Staffing Management to conduct criminal background checks, and when a cocaine possession conviction came up on the plaintiff’s record, Amazon did not hire him.  But they also did not provide him with notice about conducting the check, giving him a chance to dispute the report, as required by the federal Fair Credit Reporting Act.  FCRA requires employers who are using a third party to conduct background checks to get an applicant’s approval prior to conducting a background check, inform applicants that the information gathered might be used to make employment decisions, provide applicants with a summary of their rights, and provide them with any negative report prior to making the non-hiring decision.  This failure to follow FCRA may indeed cost Amazon, and many other companies, a lot of money. 

Anti-Discrimination Laws

The EEOC also has guidelines for background checks, stemming from a long time mistrust of such checks, especially criminal background checks, as potentially be used to screen out applicants based on race or other protected classes.  Consequently, the EEOC requires that:

·         The same standard be used for all applicants regardless of protected class,

·         Employers avoid criteria for exclusion that could have a statistically higher impact on persons of a particular class,

·         Employers should be prepared to make exceptions if issues revealed during a background check were the result of a disability.

·         The illustrated need for, and the use of, criminal background checks, should be based on criteria that are job related and consistent with business necessity. 

The EEOC also strongly recommends that employers use these criteria in screening for criminal history: 1. Look at the nature and gravity of the offense. 2. Look at the time that has passed since the offense. 3. Look at the nature of the job sought. 4. Conduct an individualized assessment while using similar standards for all applicants.

This is an area where the EEOC is litigating several cases, and states and localities are beginning “ban-the-box” efforts to forbid asking about criminal background, so it is wise for employers to pay close attention to this area. 

Genetic Information

The Genetic Information Nondiscrimination Act (GINA) forbids employers from gathering or using genetic information to make employment decisions.

Medical Testing

Pre-employment medical inquiries are specifically prohibited  by the ADA and EEOC enforcement guidances until after a conditional offer of employment is made. Then, if medical information is received, it cannot be used to screen applicants with disabilities.  

Social Media Searches

Privacy laws are a concern when conducting research on social media, so only publicly available information should be searched, and used carefully. 

What should employers do?

Develop specific, job-related criteria for what types of criminal convictions will exclude individuals from employment.

If you use a third party to conduct background checks, make sure you are following all of the FCRA requirements. 

Keep all information gathered confidential.

Train all supervisors on what kinds of things can be asked or explored in the application process.