Workplace Violence: The Tragedy of PSA Flight 1771
A Look Back 25 Years Later
Most people know December 7th as Pearl Harbor Day, as President Roosevelt said at the time in his address to Congress, “…a date which will live in infamy.”
What many people don’t know is another tragedy that occurred on the same date just 25 years ago on December 7, 1987. On this date 43 people were killed in a horrible Workplace Violence catastrophe involving a disgruntled ex-employee by the name of David Burke.
As background, Burke had a criminal past with crimes involving drug trafficking, shoplifting and auto theft. He was also a coward who enjoyed beating up his girlfriend. Burke, at one time, had cut the wires to his girlfriend’s car and had a continuous history of beating her badly. Burke had even threatened to kill her; ultimately, she had taken out a restraining order against him.
Burke brought the same problems to work with him where he was employed at US Airways. Burke’s former boss Ray Thomson fired Burke after stealing $69.00 from the flight attendant’s cocktail cart. After the firing, Thomson even received death threats through his work voicemail from Burke.
One important task US Air forgot to do after they fired Burke was to take back his airline employee credentials, specifically his Airport ID badge, this would prove to be a deadly mistake. Another problem was that a mindless co-worker agreed to lend his 44 Mangum Revolver to Burke. They guy who lent the gun to Burke, did not know at the time Burke’s purpose in attaining the weapon, nor did he know Burke had no intentions of returning the gun.
On Monday December 7, 1987, David Burke went to Thomson’s office where his intentions were to appeal his firing. Burke demanded his job back but Thomson refused, Burke’s appeal was denied. Afterwards, Thomson was heading home from Los Angeles to San Francisco via Pacific Southwest Flight #1771 as he normally commuted back and forth to work on this flight. What Thomson did not know when he boarded his flight that day was that David Burke purchased a ticket and boarded the same flight, Burke smuggled the 44 Magnum Revolver onto the plane by using his airline employee badge still in his possession to bypass security and the LAX airport metal detectors.
Of significance, Burke purchased a one-way seat; it did not matter to him where the flight was going, because no one would reach their destination that day. As the official FBI investigation revealed, when the plane reached an altitude of 22,000 feet, Burke fired two shots killing his former boss, Ray Thomson.
A note was found written on one of the plane’s air sickness bags that read:
“Hi Ray, I think it’s sort of ironical that we ended up like this. I asked for some leniency for my family. Remember? Well, I got none, and you’ll get none.”
The cockpit voice recorder (CVR) recorded the cockpit door opening and a flight attendant telling the pilots “We have a problem.” The Captain replied, “What kind of problem?” Suddenly a shot was fired killing the flight attendant, followed by Burke’s reply “I’m the problem,” then two more shots were fired killing both pilots. Burke then pushed the flight column forward causing the BAe-146 aircraft to go supersonic and plummet to the ground, the CVR recorded increasing windscreen noise then seconds before crashing there was silence as the plane broke the sound barrier before disintegrating into the rocky hillside of cattle ranch at 4:16 PM pacific time in San Luis Obispo county, near Cayucos, California.
David burke would now be known as the perpetrator of the single worst Workplace Violence tragedy in US History.
On Thursday, December 13, 2012, the PSA Flight 1771 case will be examined during a Workplace Violence webinar entitled “Work Place Violence: The 7 New Truths.”
You can register for this webinar at the link below:
Space is limited, register today.
The following is the official report issued on 01/04/89 by the National Safety Board (www.NTSB.gov)
NTSB Identification: DCA88MA008.
The docket is stored on NTSB microfiche number 34799.
Scheduled 14 CFR PACIFIC SOUTHWEST AIRLINES
Accident occurred Monday, December 07, 1987 in SAN LUIS OBISPO, CA
Probable Cause Approval Date: 01/04/1989
Aircraft: BRITISH AEROSPACE BAE-146-200, registration: N350PS
Injuries: 43 Fatal.
NTSB investigators traveled in support of this investigation and used data obtained from various sources to prepare this aircraft accident report.
A RECENTLY DISCHARGED USAIR EMPLOYEE BOARDED PSA FLT 1771 AFTER HAVING LEFT A GOODBYE MESSAGE WITH FRIENDS. HE BYPASSED SECURITY AND CARRIED ABD A BORROWED 44 CALIBER PISTOL. A NOTE WRITTEN BY THIS PSGR, FOUND IN THE WRECKAGE, THREATENED HIS FORMER SUPERVISOR AT USAIR, WHO WAS ABOARD THE FLT. AT 1613, THE PLT RPTD TO OAKLAND ARTCC THAT HE HAD AN EMERGENCY AND THAT GUNSHOTS HAD BEEN FIRED IN THE AIRPLANE. WITHIN 25 SECONDS, OAKLAND CTR CONTROLLERS OBSERVED THAT PSA 1771 HAD BEGUN A RAPID DESCENT FM WHICH IT DID NOT RECOVER. WITNESSES ON THE GND SAID THE AIRPLANE WAS INTACT AND THERE WAS NO EVIDENCE OF FIRE BEFORE THE AIRPLANE STRUCK THE GND IN A STEEP NOSE-DOWN ATTITUDE. THE CVR TAPE REVEALED THE SOUNDS OF A SCUFFLE AND SEVERAL SHOTS WHICH WERE APPARENTLY FIRED IN OR NEAR THE COCKPIT. THE PISTOL WAS FOUND IN THE WRECKAGE WITH 6 EXPENDED ROUNDS. FAA RULES PERMITTED AIRLINE EMPLOYEES TO BYPASS SECURITY CHECKPOINTS.
The National Transportation Safety Board determines the probable cause(s) of this accident to be:
The National Transportation Safety Board determines the probable cause(s) of this accident to be:
The National Transportation Safety Board determines the probable cause(s) of this accident to be:
PROCEDURE INADEQUATE..COMPANY/OPERATOR MANAGEMENT
That is the understandable reaction of the majority of American business owners, managers, and HR professionals to the recent EEOC decision to ‘recommend’ that employers refrain from asking applicants about their criminal history on employment applications. In other words, via the EEOC’s ‘recommendation,’ employers should not concern themselves with a potential employee’s criminal past – regardless of what that past entails. But, how’s that supposed to work when the rest of the world continues to consider employers responsible for who they hire?
American businesses, some of which have been successfully sued for hiring individuals who have then committed criminal acts while under said business’ employ, have been left shaking their heads. After all, the legal system has ruled time and time again that businesses themselves are liable for any harm that comes to company employees and/or those with whom employees interact. To wit, if an employee harms someone while on the job (other employees, customers, clients, etc.), it is not just the employee, but the employer as well who will be held responsible for the harm caused by the employee. The harmed party has to recover damages from someone, and employees rarely have the resources to compensate victims of crime…. but businesses do.
It’s Called Negligent Hiring, Folks
Most businesses are painfully aware of what can happen if someone under their employ commits a crime. According to an article published in the Journal of Small Business Management entitled Negligent Hiring: Headaches for the Small Businessperson, such lawsuits have been successful against the employers of bartenders, janitors, drivers, police, hospital personnel, managers, and more. The article states:
Often the basis of these lawsuits is a claim that in the hiring process the employer was negligent in some way in making employment decisions. The alleged negligence may arise from the employer’s failure to make sufficient inquiry when hiring an employee or additionally may arise if the employer retains an employee when he or she knew or should have known that the employee might have the propensity to injure another person.
The EEOC Catch-22
So, if American businesses are to understand the situation properly, hiring managers should not worry about legal liability if someone they hire commits a crime, right? Unfortunately, the opposite is true. Employers will continue to be held responsible for crimes committed by their employees, whether they follow the EEOC’s recommendation to the letter or not. In fact, any employer who follows this sorely misplaced recommendation is likely to find they’ve landed in a heap of trouble. Again according to the article in the Journal of Small Business:
The most common employer mistake that leads to liability for negligent hiring and retention is the failure to adequately investigate the background of an applicant when hiring certain types of employees. Most courts have held that background checks are not mandatory prior to an employment decision; however, if circumstances exist that should cause suspicion about an employee’s fitness, the employer has a duty to investigate that suspicion.
Instead, the EEOC have created a Catch-22 for employers. Don’t ask about employment history and risk being sued. Run background checks and risk getting sued.
Things that Make You Go Hmmm….
The legal position regarding negligent hiring isn’t new.
In May 2012, a female employee filed a negligent hiring lawsuit against a Roanoke, Virginia, employer after she was sexually assaulted in the employer’s parking lot by another employee who turned out to be a registered sex offender. In 2008, an accident occurred because a truck driver, apparently coming off drugs, fell asleep at the wheel and lost control of his truck. The driver drove the truck off the road, killing another truck driver who was inspecting his brakes on the shoulder of the highway near Ashland, Oregon. A jury awarded damages of $5.2 million to the victim’s four adult children. The fault was assigned to the driver, Daniel Clarey, his employer Washington Transportation, and also to Heyl Logistics, the broker that provided the load.
But, if the legal system continues to lay the blame for the criminal acts of employees on employers, then shouldn’t the EEOC weigh that issue with their recommendations?
One would assume so.
The Errant EEOC
Since neither logic nor transparency (the EEOC issued their new guidelines without giving American businesses or the American public a chance to weigh in) played a role in the new EEOC guidelines, one has to wonder what they were thinking. Even the U.S. Commission on Civil Rights isn’t all in on the new EEOC recommendations, citing the unenviable position of employers who have to balance the safety of other employees and customers with avoiding violating Title VII.
Interestingly, since, statistically, background checks seem to bolster hiring decisions regarding minorities, the EEOC appear to be hurting those they profess to protect.
All this aside, what gives the EEOC the right to issue such guidelines?
Although arguably well meaning, the EEOC have way overstepped their own boundaries on this one. The EEOC have no authority to issue or interpret laws. According to the EEOC’s own website, the agency have been entrusted with “…the authority to investigate charges of discrimination against employers who are covered by the law. Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding.”
To make matters worse, EEOC Commissioner Constance S. Barker stated:
… we are an enforcement agency; we have the authority to issue, amend, and rescind procedural regulations. We have no authority to make substantive changes to the law by issuing guidance that goes beyond what is contained in the statutes as interpreted by the court. Our job is to call congressional intent interpretations, not make new law. No matter how well intentioned we may be. No matter how much a change in law may be warranted. We simply lack the authority to make those changes to the issuance of guidance. It is congress’s job, not ours to weigh the pros and cons proposed in legislation and approve or disapprove it in congress. We are not part of the legislative branch. It is the job of the court to interpret the laws that congresses pass. We are not the courts; we are not part of the judicial branch. It is our job to explain what is already the law, not to expand it, no matter how much some of us may want Title VII to provide additional protection. We cannot use our authority to issue new guidance to create new rights of protection that Title VII does not provide; if we think Title VII should be expanded, we should make our concerns known to congress, not take it upon ourselves to do congress’s job.
That’s a pretty strong statement by one of the EEOC’s own.
The EEOC vs. Kaplan Higher Education Corporation (“Kaplan”)
In December 2010, the EEOC set the stage for the recent recommendation by trying their edicts in federal court. The EEOC filed a lawsuit against Kaplan alleging that Kaplan’s use of credit checks as part of its background checks for job applicants and employees violates Title VII of the Civil Rights Act of 1964 (“Title VII”). Kaplan, however, hasn’t taken the motion lying down, and businesses across the nation are watching intently for the results of the case.
Kaplan, in response to the suit, has filed motions to force the EEOC to disclose its own employment practices regarding background checks, specifically regarding the EEOC’s own guidelines for job’s that have been designated as “public trust” or “national security” positions. Kaplan performs checks based on these designations and so does the EEOC, but the EEOC argues that Kaplan has no right to do so.
And, here’s the real zinger…
“The United States Supreme Court has recognized that background check investigations serve legitimate business purposes for employers.”
Who is the EEOC to argue with the highest court in the land?
The bottom line is that the EEOC have turned down a dangerous path. The agency was supposed to provide new guidance on credit reports on 4/25/2012, not background checks; it’s now apparent why they did not.
The EEOC, by shutting out American businesses and the American public, have sent a message that the EEOC, and the EEOC alone, is solely qualified to issue legal rulings on issues that the government itself has refrained from making.
The EEOC, by failing to gather evidence and statistics that pertain to the issue, have made a rash decision that will prove embarrassing at best and dangerous at worst.
The EEOC, by issuing guidelines at a time when they were obviously unprepared to do so, and were, in fact, more prepared for a retirement party, have caused more harm than not to the individuals it professes to protect.
The EEOC, by making a recommendation that places an undue burden on employers, have opened employers up to increased liability from both job applicants and potential negligent hiring lawsuits as well as muddy the waters for employers trying to abide by state hiring regulations. The guidelines also strip employees and consumers of their rights to safe harbor.
Do as I Say, Not as I Do
Interestingly, the EEOC is attempting to hold Kaplan to task for engaging in the same employment and pre-employment practices they do. Given that the EEOC clearly believes that such background checks are valuable, it’s difficult to understand why they are electing to engage in a do-as-I-say-not-as-I-do way of implementing the nation’s trust.
The EEOC are hurting job creation when the country can least afford it. The EEOC might believe they are helping minorities when, in fact, they are doing the exact opposite; not just for minorities but for ALL Americans.
Employment Background Investigations, Kevin Connell, will present a session at the HR Florida State Council Conference in Orlando, Florida on Tuesday, August 30, 2011 at 11:45 am titled “Resume Fraud in Today’s Economy & Negligent Hiring”.
Join Kevin Connell to learn the types of resume fraud most common in today’s economy, as well as, the shocking cost of Employee Theft. Kevin will also present on Negligent Hiring and how HR professionals can reduce such risks.
One of the biggest challenges in finding good employees starts with the selection process. Employers question the ways in which they can keep from hiring unproductive employees. The answer to their questions lies in the job description, the interviewing process and a professional pre-employment screening of each potential candidate.
It is important to compose a strong job description including the title of the position, department, who the job reports to, what overall responsibilities it includes, key areas of responsibility, objectives, the term of employment and qualifications needed. This type of job description will attract serious and qualified candidates instead of large groups of run-of-the-mill candidates. Job seekers who are serious in their job search want as much information as possible before they apply to a position. Vague or poorly written job descriptions often push away great candidates.
A good interviewing process should always include both sides – employer and potential employee. Many interviewers make the mistake in thinking that a job interview is one sided and only ask questions aimed at finding out what the candidate can do for the company. A candidate often articulates what is important to him/herself but the interviewer must listen to discover what they can do for this potential employee. The honest truth is that most people apply for a job that will offer the most he/she can get. If the candidate is highly skilled or has a profession that is in high demand this is especially true. If you know your company is slow at handing out raises, make use of any other perks your company may have to offer and divulge them to the potential candidate. These perks can be anything from flextime to telecommuting. Many good employees will consider it a huge perk to be able to take off a few hours early to avoid a heave commute!
Professional pre-employment screening becomes an important issue in finding productive employees, as many times recruiters will like a candidate and, unfortunately, makes the mistake of overlooking any minor inconsistencies discovered in reference checks. While reference checks can provide a potential employer a more reliable view of the so-called candidate it does not equal the effectiveness and efficiency a pre-employment screening from an experienced company. Recruiters may opt to ‘overlook’ any inconsistencies because they like the candidate and want to fill the open position as quickly as possible. This can be a costly mistake to the company. Obtaining accurate, recent and factual information is a difficult task for someone who does not do it consistently and expertly. This is best left to a professional employee background-screening firm.
It is important for companies to select the ‘right’ employee from the beginning, not only to save them time but also for financial reasons. In order to do this, and regardless of the candidate, a pre-employment background screening should be conducted. Pre-employment screening can help avoid problematic employees by discovering their resume inconsistencies or even fraud. Screenings can also help you avoid becoming part of a negligent hiring lawsuit for your failure to verify information on an applicant, should any problems happen in the future.
Companies often hire potential candidates blindly and, unfortunately, pay unwelcome consequences. When hiring an employee based solely on what is indicated on their resume or job application, you are hiring considered to be hiring “blindly.” In other words, when you make your hiring decision, you are relying that the word of the job applicant is honest. Considering that up to 47% of applicants either lie or exaggerate on their resume or job application in one form or another, it is not recommended to make a hiring decision based only on what a candidate tells you.
Smart employers know that before they hire they need to verify all the information provided by an employee. This will help prevent problems down the road. They also understand that it is their duty to verify information to make sure they don’t become part of a “negligent hiring” lawsuit.
Screening an employee is one of the most cost effective ways to avoid hiring unfit or unethical employees. The cost of an employment background screen is relatively cheap and the results are easy to measure. When inconsistencies or lies are revealed during a background screen, an employer can readily see the benefits of the employee screening compared to the potential expenses that type of employee could cost their company in the long run.
Hiring a pre-employment background screening firm is easy and relatively affordable. While there are several firms available, it is important to hire a firm, such as AccuScreen.com that has the experience and resources to provide accurate and up to date information on potential employees.
There are many benefits of screening employees during the hiring stage. When an employer is pro-active in hiring employees and conducts an employee background screening they can help themselves avoid issues such as resume fraud, identity theft, employee theft, employees with criminal backgrounds and employees with substance abuse problems. These issues must be discussed in order to fully understand their impact on a company.
Resume fraud is a common issue that many employers cannot catch with a background check. This type of fraud can include minor embellishments all the way to flat out lies. Inflated titles, fake education and bogus degrees are all common exaggerations. Lies about education can happen from entry level to executive level positions. Recently, two senior level employees resigned from their positions at Radio Shack and MIT after it was discovered that they had lied about their educational background on their job applications.
Some unfit employees will also busy themselves in identity theft. They misuse their position in a company to gain confidential information for their own personal gain. For example, credit card and social security number theft is common and is a serious offence. This information is then used to purchase items and open fraudulent accounts. Employee theft is also common and usually involves the theft of property or cash, but can also include the removal or use of confidential or sensitive information such as intellectual property.
Applicants who have serious criminal backgrounds often avoid applying to companies that pre-screen employees. Some do take their chance and hope that their criminal background is not discovered. When conducting employee background checks it is best to include a criminal records search just in case. The last thing an employer and other employees need is a new employee with violent or dangerous tendencies. Similarly, companies often hope to identify substance abuse problems in potential employees before they are hired. Drug tests are sometimes mandatory in some organizations, but it is a good idea for all companies to include a drug test as part of the employee background screen. Unfortunately, many problems in the workplace are associated with substance abuse and can include absenteeism, theft, identity theft and violence. It is best to clear the air and identify these problems before a candidate is hired.
There are many instances when an employer may not be expected to look into a new hire’s criminal background. For instance, a hotel groundskeeper who has no direct access to guest rooms may be subject to different hiring requirements than cleaning personnel who may have keys and direct access to each room. It stands to reason that the groundskeeper may not have to submit to a criminal background check while the cleaning personnel would.
This scenario may have been true in the past, but due to the increase in job-related crimes, savvy employers know that they should require thorough background screening of each and every employee they hire, including, in the case of the hotel groundskeeper, those with no direct access to guests.
The reason for a comprehensive policy of background checks across the board is that it’s not just guests, clients, or customers who sue. Employees themselves have a right to expect to be reasonably safe on the job. And they have the right to hold the employer responsible for ensuring that safety. So, using the example of the hotel groundskeeper, although he may not have direct access to hotel guests:
1. He could commit a crime against a guest even though he has no direct access.
2. He could commit a crime against a coworker.
3. He could commit a crime against someone in the immediate vicinity of the establishment.
4. He could commit a crime against a contractor or vendor present on hotel property.
Looking at such scenarios, it’s a wonder why all employers don’t automatically screen every employee. The reason most don’t, the reason why they play Russian roulette with the safety of their employees, clients, customers, and contractors, is because it can be cost prohibitive to perform background screening on all employees. But, in the long run, inviting a negligent hiring lawsuit just isn’t worth the risk of failing to exercise reasonable care when hiring. After all, a negligent hiring lawsuit can not only be expensive, it can ruin the reputation of an organization. Again, using the example of the hotel employee who rapes a coworker (or a guest!), the hotel could lose a lot of business from the adverse publicity generated by such a lawsuit.
Hindsight is Better than Foresight, but Foresight is Smarter
It seems that in this new age of negligent hiring lawsuits, employers are expected to be clairvoyant. But, victims don’t quite see it the same way. Any employee, guest, client, customer, or contractor who becomes the victim of a crime due to the failure of an employer to thoroughly, if not properly, screen their employees for anything that may affect the rights of the victim can be reasonably considered the responsibility of the employer. This is because it is assumed that it is not just the individual who is responsible for his or her behavior; it is the employer who has to ensure that all employees hired meet a certain standard. After all, victims aren’t likely to receive financial compensation from the perpetrator, are they?
Ultimately, it’s not less expensive to cut corners on pre-employment screening. A lawsuit can be damaging in so many ways. Smart employers require all employees to submit to thorough background screening.
Hiring managers generally fill positions according to which applicant is best for the job. They consider aspects of an applicant’s education, past work history, experience, etc. But, rarely, do hiring managers consider what can often be the most important aspect of what an employee brings to the workplace – criminal history.
Negligent hiring occurs when an employer fails to properly screen prospective employees, leading to the hiring of someone who has a criminal history that may have otherwise made the hiring of that individual undesirable primarily because doing so would have exposed other employees to unsafe working conditions.
For instance, if an employer hired someone who had been convicted previously convicted of rape to supervise an offsite group of female employees, that employer could be held legally liable should something occur on, or off, the job site. One the job site, the employer would be obviously liable. Off the job site, the waters become murky, but the case of a BP oil spill cleanup supervisor who offered a female coworker a ride home, then allegedly raped the woman, shows that employers may be liable for what happens outside the workplace if that employer’s actions, or lack thereof, could be viewed as the reason someone becomes the victim of a crime perpetrated by a coworker.
What all this means is that employers have to make sure that the people they hire don’t have a criminal background. An employer who becomes liable because an employee has become the victim of a criminal act perpetrated by a coworker, may be in that position because the law assumes that the employer should have known, had they performed a background check, that the employee they hired may have been a danger to those around him/her (or even to a client/customer of the organization).
The law requires employers to exercise what is called due diligence. Due diligence is the responsibility of vetting prospective employees for not only basic job skills and previous work history, but for personal factors that may be an issue within the workplace as well. Existing employees and customers have a right to expect a safe workplace. And, although there are certainly many things that can change after hiring, an employer’s failure to properly screen employees may leave them vulnerable to lawsuits and even criminal negligence.
The only way for employers to protect themselves against a negligent hiring lawsuit is to ensure that they have a sound and comprehensive pre-employment screening policy in place. A good pre-employment screening policy should not only include a check of educational information, prior employment history, and other “usual” employment-related requirements, but it should also require that anyone offered employment be subject to a thorough criminal background check.
All employees hired by an organization should be required to submit to such a screening. It is no longer good enough for employers to screen only those employees who may be in a position to directly damage the company’s bottom line – such as executive-level employees, those with access to company funds, etc. – but all employees. The people an organization hires are now, in many ways, considered the responsibility of that organization, both on, and in some instances, off the job. Employers have to protect themselves and their employees.
Negligent hiring is based on the principal that employers have an obligation to protect their employees and clients from injury caused by their own employees. Employers have an obligation to protect their employees from the “foreseeable” acts of a fellow employee. Negligent hiring happens when a company fails to check references or conduct a criminal background screening prior to hiring the employee. In other words, a company has the responsibility of Due Diligence.
The term “Due Diligence” first came into common use as a result of the US Securities Act of 1933. For business purposes, “Due Diligence” is the effort made by an ordinarily prudent or reasonable party to avoid harm to another party. Failure to make this effort may be considered negligence.
It’s important that employers perform their Due Diligence by conducting a background screening on every employee hired. This should be done regardless of the size the workforce or whether law requires it or not. Ideally, prior to hiring a prospective employee an employer needs to perform a pre-employment background screening that includes a criminal records check. The employee should not start work until the background information is verified and a criminal background check is performed.
According to Kevin G. Connell, Founder and CEO of Accu-Screen, Inc., the most reliable criminal records information is found at the local courthouse level. Unfortunately, the processing of criminal records at this level is slow and inaccurate at times. Getting criminal background information off the internet, in order to save money, is also counterproductive. There is no way to verify that the information received in that manner is accurate or even applicable. By hiring an employment background search firm such as Accu-Screen, Inc. Inc. you will receive
-Experience: Since 1994, Accu-Screen, Inc. has been a pioneer in the pre-employment Screening field.
-Speed: With a guaranteed turnaround time of 24-72 hours, Accu-Screen, Inc. delivers background reports consistently faster than the competition.
-Technology: Accu-Screen, Inc.’s Online System delivers a 24/7 paperless system to order and retrieve background reports.
Examples of Negligent Hiring
It is very important to do a pre-employment background screen on service, contract and even sub-contract employees. Some overlooked service, contract and sub-contract positions include:
• Taxi drivers
• Pest Control
• Maintenance employees
If an employee will be contact with a customer or public it is imperative that he or she go through the process of a professional employment and criminal background screen. A professional employment and criminal background screen can help you avoid the possible following scenarios:
• A taxicab company was held liable for negligence in hiring a criminally violent driver who raped and robbed a woman in the presence of her two young children.
• A taxicab company was liable for a person beaten by a taxicab driver after paying his fare and leaving the cab.
• The U.S. District Court for the Southern District of New York awarded $1.5 million to a woman and her son who suffered physical and psychological injuries following a sexual assault on the woman by the maintenance man employed at the defendant’s apartment complex.
• An employer was held liable for the negligent hiring and retention of a sexually aggressive service employee with a criminal record who subsequently raped a female client.
You hear about these incidents all the time. You also wonder how and why these people ever got hired and how it could have been avoided. In many of the incidents, the employee had a history of violent or criminal behavior that would have been discovered through a pre-employee background screen by a professional screening firm. These situations can be avoided at your company when employers are pro-active in the hiring of its employees.
It is important to remember that there are positions that require employment background screening regardless of whether the position is a regular or contract position. For example:
• Elder care attendant
• Daycare provider
• Health care worker
On a side note, elder abuse lawsuits are on the rise. Cases involving long-term care facilities are based on negligence, willful misconduct or fraud by an elderly care attendant. Examples of abuse by health care employees:
• Deprivation of food or water
• Failure to prevent malnutrition
• Failure to assist in personal hygiene
• Unauthorized use of physical or chemical restraints
• Lack of pain medication, under medication or overmedication
Many of the cases stem from poor hiring practices throughout the long-term care facilities. This occurs when service employees are hired without a careful screening of their background and skills for this type of position. It can also occur when employees are promoted without verification of required credentials and training. These employees go onto to supervise and teach other employees poor and possibly dangerous working habits. The similar situation occurs for daycare and healthcare workers.
Consequences of negligent hiring
Most businesses have a hiring process that is followed for every job applicant. Typically the recruitment process entails the following steps:
• Application or resume′ submitted by applicant
• Phone screening of applicant
• Candidate is interviewed
• Management meets to make hiring decision
• References may be checked by Human Resources
• Job offer is made
This procedure would be fine if a third party such as an employment-screening firm checked the references. Additionally, a candidate should pass a criminal records screen. When a thorough reference and criminal screening is not made, or handled poorly, it can literally come back to haunt employers. The recruiting process should be handled like any other business deal. Hiring a candidate based on information on a resume’ and a good personality fit, should not be what seals the deal. Every bit of allowable and available information should be gathered before a job offer is made.
The fact is that many human resources departments do not have the time, resources or experience to do a complete employee background screen. For most employers, finding the most accurate and up to date criminal records information is very time consuming and confusing. Furthermore, there are privacy laws protecting job applicants that must be followed in order to avoid a discrimination lawsuit.
Some of the consequences of negligent hiring can result in:
• Lawsuits from injured or victimized employees or clients
• Wrongful termination lawsuits
• Loss of profits or sales
• Increased insurance costs
• Diminished business reputation
Lawsuits from injured or victimized employees or clients
Lawsuits can come from a variety of complaints from employees or clients. The most serious complaints include violence and great financial loss. This can involve an employee who caused another person physical or emotional damage. Although cases of fatalities in the workplace are not commonplace, the results of these incidents are devastating to the victims and to a business.
Wrongful termination lawsuits
A ploy used by unethical employees is the ‘wrongful termination” lawsuit.
This happens when an unproductive or troublesome employee is fired. In retaliation, he or she will file a lawsuit against the employer. The goal is usually to settle fast to avoid a hearing in court to settle the matter. These opportunistic employees usually have cases without merit. Yet, they know that some companies will just settle to avoid the expense of dragging on a lawsuit. Through careful screening of references, this type of employee can be avoided. It is not enough for employers to be aware of what is going on with their employees. They need to be aware of what their prospective employees have been up to in the past.
Loss of profits or sales
Hiring an inept employee can quite literally cost a company. It is important to have a candidate’s skills educational background to make sure they are fit to perform the job hired to do. It is equally important to do a criminal background screen to make sure the employee is an honest and ethical person. Be assured of these two aspects before making a hiring decision can save money and frustration in the future. Avoid hiring “poor functioning” employees that will drive you to the poor house!
Increased insurance costs
Increased insurance rates result from workers compensation claims. An employment records report will help identify and avoid “habitual” workers compensation claimants.
Diminished business reputation
Your employees are your company. Make sure you hire applicants who will make the best impression in every possible way. No one wants to conduct business with employees who are dishonest or violent in any manner. By obtaining a criminal background screening you will be able to decrease the likelihood of hiring an employee that will cause damage to your business or customers.
When employers fail to be pro-active in all area of their business, things can and will fall between the cracks. In some instances, these slips can be very expensive.
The expense of negligent hiring
A smart business owner will purchase different forms of insurance for the company and employees. Yet, sometimes that same businesses owner will hire people without insuring the business from perpetrators.
An unfortunate example is the recent story relayed of the story of an accountant who stole from his employers. The accountant was accused of stealing more than $375,000 from one of his clients rather than use the money to pay taxes to the Internal Revenue Service. According to court documents made available, the accountant was supposed to take care of payroll taxes for his employee and roughly ten of his employer’s staff at his dental office. The court documents say the accountant would prepare one check for each employee’s adjusted net income and one check for taxes. The documents also state that he asked, however, that the tax checks be made payable to his business, with the understanding he would send the money along to the IRS.
The dentist’s wife, who also works at the dental office received a letter from the IRS and soon found out no tax returns had been prepared or filed in her husband’s name in 2003, 2004, 2005, and 2006. The total amount, more than $375,000, should have been sent to the IRS, but wasn’t. The court records indicate that a review of bank records show the accountant made numerous withdrawals from his business account for mortgage payments, concert and airline tickets and other personal uses.
The accountant has a prior criminal record. According to court records, in 1997 he pleaded guilty to stealing more than $250,000 from an 88-year-old legally blind woman for whom he was an accountant. He was only sentenced to four years of probation in that case.
Ironically enough an employment background screen that costs about $150 would have revealed the accountant’s prior criminal conviction. A smart business owner knows that the cost of something needs to be weighed against the end result. In this case the small cost of the background screen would have saved the dentist $375,000.
Then there are the situations where the actual figure can’t be calculated but it can equally cause a business financial loss. For example, if a company hires an employee that detracts sales from the company due to lack of skills, the actual loss is unknown but still occurs. Or there is the scenario where an employee is a poor performer due to personal issues, such as drug or alcohol abuse. This type of employee can literally drain the company of resources directly through theft or indirectly by lowering the morale of the company.
How to avoid negligent hiring
Sadly it has now become commonplace for some companies to assume they will eventually get sued by employees for one reason for another. It is true that a company or business owner can’t have control of all of the actions of its employees. Yet, steps can be and should be taken to prevent hiring risky employees. The goal of the employer should always be to minimize any potential harm to company assets. This, of course, includes employees as well as the finances of a business.
One of the best ways a company can avoid lawsuits from an applicant is by hiring a background search firm such as Accu-Screen, Inc. Inc. When you hire a reputable firm such as Accu-Screen, Inc. Inc., you also help avoid arbitrary hiring that may lead to a discrimination lawsuit.
Employers can be held liable for facts that are known or “should have been known” regarding an employee’s character or job-related experience. If you are aware, or have reason to believe your employee is unfit for duty, you can be held liable for negligent hiring. By retaining a qualified employment background screening company, you can avoid jeopardizing yourself and your business from this dangerous liability.
How Do I Choose An Expert Employee Screening Firm?
A full service firm such as Accu-Screen, Inc. Inc. will provide the most accurate and complete information on:
• Criminal Records
• Driving Records
• Drug Testing
• Social Security Number
• Worker’s Compensation
• Licenses & Credentials
• Credit Profile
Accu-Screen, Inc. Inc. obtains criminal records by County and State (where available) in accordance with the Fair Credit Reporting Act. Our analysis reveals that over 3% of the individuals we check have a felony record and over 7% have a misdemeanor. With our criminal record search, you receive a criminal history that is clear and easy to read, enabling you to make the right hiring decision.
Accu-Screen, Inc. obtains Motor Vehicle Reports (MVRs) from the appropriate Department of Motor Vehicles to verify the applicant’s identity, histories of accidents, speeding tickets, reckless driving, suspended licenses, DUIs and DWIs. It is important to note that MVRs are not public records.
Accu-Screen, Inc. is affiliated with a network of national laboratories that provide testing for legal and illegal drug usage. All testing is conducted through NIDA, DOT and HRS certified facilities and meets current Federal and State Drug-Free Workplace requirements. Additionally, we conduct previous employment drug test verifications as required by the FAA and the Department of Transportation.
Social Security Number
Accu-Screen, Inc. Inc. confirms the identity and validity of the number and its issuance by the Social Security Administration.
Our analysis tells us that over 43% of the applications that we process contain at least one falsification by the applicant. We verify the accuracy of employment history with emphasis placed on past job performance, employment periods, positions held, salary, rehire eligibility and reasons for leaving.
The FBI estimates that over 500,000 people nationwide claim college degrees they never earned. We verify the applicant’s educational qualifications as well as the accreditation of the College or University awarding the degree.
Workers compensation information is released in compliance with the Federal Americans with Disabilities Act. It provides a history of the individual’s work-related injuries that includes dates of accidents, nature of injuries and if the claim was upheld or denied by the state authority.
Licenses & Credentials
Accu-Screen, Inc. Inc verifies all professional licenses and claims of credentials. This ensures that your prospective employee may legally perform the work required for the position.
In accordance with the Fair Credit Reporting Act, Accu-Screen, Inc. Inc. can provide a report indicating the applicant’s existing debt, payment history, judgments, liens, collections and/or bankruptcies.
There are many employee background-screening firms out there. Make sure to contact the firm’s customer service to get information on:
• Years of experience
• Fee for services
• Turnaround time
• Areas of expertise
Negligent hiring can be an expensive and frustrating experience. Fortunately, there are many measures employers and business owners can take to protect their business and employees. Having a pro-active attitude and having the right information during the recruitment of a new employee can make the difference between hiring a “star employee” or the “employee from hell”.
For more information on Accu-Screen, Inc. Inc. and how we can help you hire qualified and top-notch applicants visit www.accuscreen.com.