Ideologies in the workplace

Watching what unfolded in Charlottesville in mid August I noticed one of the protestors wearing clothing marked with the Verizon logo, their uniform. Later Verizon issued a statement stating that the company in no way supports the white supremacist groups or the hate and bigotry associated with the groups. It may be sometime, if at all, when we hear if this person was an actual employee and was disciplined or terminated. Obviously, this person, whether an employee or not, put Verizon in an awkward position.

Publicly representing the company for which one works does limit what an employee can do in their off duty hours. Some businesses have policies specifically stating that employees cannot express political views while representing the company. What the employee does off duty when not representing the company and whether the company can control these activities has come under court scrutiny. Most notably in the use of medical marijuana. (Smoke ‘em if you got ‘em {Marijuana in the workplace})

If an employee is wearing the company uniform and participating in activities that go against the company values the company may have legal precedent to terminate or discipline the employee. The question that came to mind is what if the employee keeps the off duty activity anonymous? They do not espouse their ideologies at work and is a solid employee/coworker. Somehow their off duty activities are exposed and now the workplace becomes a hostile environment. Are there grounds to terminate that otherwise productive employee?

What are employer’s rights?

Allen Smith, J.D., wrote an excellent article for the Society For Human Resource Management website, Can or Should Employers Fire Employees Who Participate in Hate Groups? Smith reinforces what I have found, that the answer is not clear. When what employees do off duty creeps into the workplace several legal precedents have to be considered before an employee can be fired. Allen Smith makes the following points.

No federal law is violated if a worker is fired for being a member of a hate group or verbally expresses beliefs. Courts have rejected KKK members claim of religious protection under Title VII of the Civil Rights Act of 1964. Freedom of speech protections under the First Amendment does not apply to private employers.

Most states are work at will states meaning that employees can be terminated for any lawful reason. California, Colorado, New York, and North Dakota have laws protecting workers against being discriminated against while participating in lawful activity outside of work. However, if it becomes known at work that an employee was participating off duty in a hate-based protest, an employer may choose to terminate. Basing their action on violations of non harassment policies.

When dealing with customers who are offended by an employee’s ideologies, businesses have to consider the impact on the business. If the person continues to be employed will that affect business? Or is firing the employee at the risk of being sued better for the company?

Human resource issues are not cut and dried. Even though similar issues may have arose in the past, each case must be examined on their own. Always contact an employment law attorney before making termination decisions.

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?

Mazzella-Investigative Solutions-Services

Providing a safe work environment

            Providing a safe work environment is the responsibility of every employer. The Occupational Safety and Health Act of 1970, requires employers to provide employees with working conditions that are free from known dangers. Most associate OSHA with the physical hazards associated with occupational safety and health issues, which is correct. However, there is more involved than protecting against physical hazards. Who you hire, protecting against workplace violence, and being prepared for acts of violence in the workplace are all components of a safe workplace.

Hiring the right person for the job is the one component that is often overlooked. Why should you do employee screening? The expense of making a bad hire is generally three times the salary of the job in question. One third of all resumes have some lies, so you need to ensure the applicant is who they say they are. Workplace violence amounts to 18% of all crime. Those with a propensity for violence can be discovered before they’re hired. Workplace accidents can be reduced because the applicant was thoroughly vetted and has the skills for the job.  Liability. Employees or others who may be harmed by an under qualified or violent employee can sue the employer.  The safety of all involved is put at risk when the employer does not check into the applicant’s background.

Safe working conditions are always on employer’s minds. The impetus behind the Occupational Health and Safety Act was to prevent workers from being killed or injured while at work. The U.S. Bureau of Labor and Statistics reported over 4,000 deaths attributed to workplace injuries in 2011. Private sector injuries had an average of eight days of work missed. Assessments of the workplace are necessary and constant.

Just because a condition was fine today doesn’t mean that conditions will not change. Employees have to know why policies are in place and understand the reasoning behind the policy. They also have to see that management takes safety seriously and practices the safety policies. Employees have to be trained on all machinery. If it is determined that personal protective gear is needed to reduce injury, employees have to be provided the necessary PPE as well as be trained in its use. Whenever there is an incident, the employer should determine the cause, provide solutions, corrections, and retraining so that further exposure to an unsafe condition is removed.

Workplace violence can happen anywhere to any type of business. Whether a disgruntled employee or customer, or the perpetrator chooses your business to commit the act, the possibility has to be considered. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries, of the 4,547 fatal workplace injuries that occurred in the United States in 2010, 506 were workplace homicides. Homicide is the leading cause of death for women in the workplace.

First, it must be understood that individuals do not “snap”. Studies have shown that individuals who commit acts of workplace violence are set on a pathway to violence well before the act occurs. There are indicators that the person’s life is going off track and these indicators are manifested in daily interactions. Changes in mood or mood swings, becoming introverted, violent outbursts, or other changes in personality may indicate that something is wrong. Talking about violence and threatening others, or property destruction, and strange computer activity may be more indicators. Bear in mind that not one action may indicate that someone is about to act out, but changes should be noted. The decision to act is usually caused by a triggering event. Triggering events are usually a perceived wrong against the person or an attack on their ego, such as loss of financial stability, divorce, loss of promotion, or being overly disciplined.

            Employers should have policies and plans in place to deal with workplace violence. Employees need to feel confident that they can report abnormalities and that action will be taken. They should be trained in how to deal with violent employees and evacuation methods. Security strategies used to prevent crime against the business work well in preparing the environment for acts of violence. Security doors and cameras, clear line sight throughout help identify and prevent against potential threats. Employers should know their employees and be able to identify when something just isn’t right. Simple intervention and counseling early on could prevent acts of violence.

Providing a safe work environment is not just about working conditions. Employers have to take into consideration all the factors of workplace safety: Hiring, Safe conditions, and Workplace violence. Simple prevention strategies, employee training, and response may save lives and keep the employer out of court.

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