Issue link: https://www.e-digitaleditions.com/i/234597
Background Screening employee crime is not an excuse. It can be as simple as allowing an employee with minimal driving infractions to continue driving a company car. employees dealing with vulnerable populations like children or the elderly, operating dangerous equipment, or working with secure information. As Goldberg explains, "Take for example, if you have a sales person or a driver that's not regulated so they're not required to do a certain type of screen, if they get into an accident or they have some type of issue that suspends their driver's license, they're not necessarily going to tell the employer that they've had that issue. They may continue driving on company time and continuing to do that could open the organization up to negligent hiring risks and other types of lawsuits." Re-screening can have a positive impact—for the entire organization. Random drug testing can be a part of the effort to encourage a positive workplace, and can actually become the push drug users need to receive help. "Company-sponsored programs have the highest success rates, they typically involve support groups involving other coworkers, you have the incentive of continued employment, typically they involve family counseling and so the employer programs are very effective," shares Mark de Bernardo, executive director of Institute for a Drug Free Workplace, in a recent webcast marking the 25th Anniversary of the Drug-Free Workplace Act. In 2012, transportation-related incidents represented 41 percent of all workplace fatalities, according to the United States Department of Labor. Could re-screening help prevent this? That is hard to be determined, but it brings attention to the fact that injuries, fatalities, and liabilities do occur in the workplace, and employers should want to attempt to reduce this possibility as much as possible. Formal office policies are unfortunately not always efficient. Even if there is an office policy in the employee handbook requiring staff to divulge all criminal offenses that occur during employment tenure, it does not ensure that employees will oblige. The withholding of this information is rooted in the hopeful prospect that the employer just will not find out. "Those policies are lose-lose for the employees. [In the voice of the employee] 'If I tell, they're going to fire me. And if I don't tell, they're going to fire me…later.' So it puts them in a situation where the incentive is not to tell, and hope they don't get caught" shares Monroe. "It's naïve to think there's no activity that could bring additional risk to your organization, just because you hired them. Just because you hired them didn't mean they weren't capable of something. Someone could have a behavior for quite some time that they haven't been caught at yet. Everybody that speeds doesn't get caught speeding. But sooner or later they might." Safety-sensitive positions require up-to-date knowledge of employee criminal histories and drug usage. When employees are consistently in a position where they could cause others and themselves harm, employers need to be aware of criminal activity that could have possibly occurred since becoming employed. "A continued employment risk is a significant risk to any organization […] especially when there's vulnerable populations – you know, hospitals where there's patients, or kids involved, schools, things like that," explains Monroe. Re-screening would be beneficial to organizations that have What to Consider The need to re-screen can be established for companies in every industry, but in the process, employers may face some complications. Follow EEOC Guidance. In April of 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued new regulation under its "Enforcement Guidance," that is complicating and regulating the hiring process. It mandates that employers cannot withhold employment solely based on an employee having a criminal record. So what does this mean for the re-screening practices? The EEOC encourages individualized assessments based on the specific circumstances of the employee. Employers should considering when deciding whether to maintain or release employment: • Was the crime committed in relation to the nature of the position? • What is the amount of time lapsed since the crime? • What is the nature of the job? In addition to these considerations, the individualized assessment "means notifying that employee, giving them an opportunity to explain, and considering it," explains Gregory Dillard, a partner at Vinson & Elkins LLP specializing in employment, labor, and business disputes. This guidance opened the door to a more relevant, accurate, and positive screening process. "What we saw is that the guidance did a nice thing for employers and screening companies alike, which is it allowed us to strengthen our ability to align our reporting with the policies that employees put in place, that align with this guidance," shares Goldberg. "And DECEMBER 2013 | www.hrotoday.com [57]