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Wednesday, July 24, 2013

Don't want to know...

We’ve spoken to several business owners about checking their employee’s backgrounds and driving records. What is most troubling is that many employers want to keep on their blinders. They don’t want to know about their employee’s past. Which might be OK for social issues or even criminal issues. Because the employee’s past does not directly affect their job performance or skills. Many employers hire those who have been released from prison. Which is a good thing. Most State correctional facilities have step down programs and teach vocations, employable skills, and most inmates finish or further their educations.

What is troubling is the failure of employers who employ drivers as their primary workforce to check driving records. Most drivers are entrusted with large capacity passenger or heavy cargo vehicles. The employer is more concerned with the skill the employee possesses than the performance of that skill.  Many say that if they checked into their drivers past they would not have any drivers. Another one is, “We only hire people we know”. Well, how well do you know someone? If your “friend” is forty and you’ve known them for five, or even ten years, that seems like an eternity. However, they’ve had twenty-two years of adulthood before you ever met them.

So maybe the reasoning is the liability the employer would assume if they hired a driver with a questionable record. Would that liability be lessened if the driver was employed without a check and was at fault while driving the company vehicle?
Liability may exist in either scenario and would depend on the industry standard. Some businesses regularly check their employees for certain positions while others do not. Does a business have benchmarks for what is considered dangerous? Just because the employee has driving infractions this does not open the business to liability.  Non-moving traffic violations can be far less of an issue than moving violations. Even moving violations have degrees of severity, such as “failure to reduce speed to avoid an accident” as opposed to “ negligent driving”.

For those who occupation is ”driver”, isn’t their record a performance review of their skills? If you hired a carpenter and were able to access a database that listed carpentry infractions wouldn’t you like to have this information? Record checks can verify resumes or skill levels. This was a simplistic comparison, but if you were concerned only with your employee’s skills, wouldn’t you want to know everything? Why is driving any different?
Here are a few instances of drivers involved in accidents in which it was later discovered that they had previous traffic violations.
  •   July 2013-Dayton, OH-Ice Cream truck driver possesses a suspended license and has 27 arrests for a variety of offenses
  • February 2012-Chesterfiled, NJ-Driver of school bus involved in fatal accident had undisclosed medical condition that prohibited from driving a bus
  • March 2011, New York-Driver of bus in accident that killed fifteen had previous driving violations.

We have discussed this topic with attorneys who have said that they have had different experiences. Most of their clients and companies they know do check their driver’s records.  Regarding liability, it would be more prudent to check your drivers than to not. Just because someone has infractions on their driving record, that alone does not make them a poor candidate to hire. If one of your drivers has an accident and you find yourself in court, it is easier to defend your policy of hiring a driver with violations than not checking at all. 

Tuesday, July 9, 2013

What is the price of not doing a background check?

As a business owner what is the price of not doing your due diligence in regards to employment screening? Is it the expense of making a bad hire and then paying for benefits, training, maybe uniforms? Poor hiring decisions can sometimes add up to three times the salary of the job. Maybe it’s not recognizing that the applicant exaggerated qualifications on their resume. Recent surveys have shown that at least one-third of all resumes have some degree of embellishment.  As the job market gets tighter, applicants will become more desperate to get their resumes thru the electronic filters and to the top of the stack. Not discovering that the applicant has a propensity for violence can result in difficulties in supervising the employee or worse, dealing with a workplace violence incident and the aftermath of legal claims.

Businesses have to follow strict hiring guidelines established by the EEOC, FCRA, and States, while still having the responsibility to provide a safe workplace and hiring the most qualified person. The courts are beginning to see litigation against businesses for improper hiring practices or administrative actions when an employee causes harm. In February 2013, a cabdriver employed by an Alexandria, VA cab company shot and wounded an Alexandria police officer during a traffic stop. The officer is suing the cab company for $10 million in total damages for negligent hiring and negligent entrustment. During the four years the driver was employed and prior years, he had been charged and/or convicted of several violations.
  •  Failure to obey a traffic signal, 2007
  • Speeding, 2009
  • Failure to pay attention, 2012
  • Failure to obey a highway sign, 2012
  • Tampering with a vehicle, 2011
  • Speeding, 2007
  • Failure to wear seat belt, 2007
  • Failure to pay full time and attention, 2010
  • Speeding, 2011
  • Failure to obey a traffic signal, 2013
  • Violation of good behavior on a misdemeanor offense
  • Illegal sale of unapproved equipment
  • Misdemeanor assault, 2011

These charges appear to be traffic related in nature and do not show any indication of violent behavior. The case has not been adjudicated or the arguments published so we do not yet know how the driver’s traffic record plays into the act of violence. It does seem that a company hiring this person as a driver should have more closely scrutinized his driving record or have documented reasoning as to why he was hired in lieu of such a record. While the outcome is yet to be determined, the company is having the expense of defending its hiring practice in preparation for court.

It is easier to defend sound, documented reasoning than to have no defense at all. In the hiring of drivers, people feel that driving records are secondary to skill or familiarity. More than once I have heard the excuse, “If we checked records we wouldn’t have any drivers” or “ We only hire people we know”.  Say that to a jury while clicking your heels and maybe the lawsuit will disappear.

With governments converting more data to digital formats and becoming more open with their records, employers also get caught in the Internet trap.  They feel that they can check records themselves. In a recent blog "National" records checks?, April 11, 2013", I explained the process of criminal record data collection and availability. There is no national database for all criminal records and certainly not a single place where you can find all driving records. So employers who feel that they can simply check their State’s available records are potentially missing huge amounts of data about their prospective employee. Data that you can be sure will be revealed in court.

Also necessary is to properly identify the applicant. Not that they are using their twin for the interview, but that they are who they say they are. Many people, either to avoid detection or for personal taste, use different names or variations of their given name. Depending on the situation, whether it is financial or judicial, the name variations can result in different returns during searches. This may not be discovered unless the background check itself reveals the name variations. The DIY employers would miss this.

Pre employment screening is more than a quick check of an applicant’s criminal record. The employer has to have a thorough process that is used equally, fairly, and within hiring guidelines. Many factors go into selecting the correct applicant for the job. Selecting the wrong candidate will cost the employer. You wouldn't buy a used car without having it checked by an authorized mechanic. Why risk your business by not "checking" your employees before hiring them? 
What are you willing to pay for hiring the wrong person? As they say, everyone has their price. What is yours?