Archive for the ‘Employer Legal Issues’ Category

Preventing Violence in the Workplace

Tuesday, February 21st, 2012

employee prescreening, employee criminal background checkA new survey by AlliedBarton Security Services reveals that more than half of Americans have had an experience with workplace violence. The survey of 1,030 adults reported that 52% of respondents witnessed, heard about or experienced a violent event or an event that can lead to violence at their place of work. Typical incidents that lead to violence include hostility, threats and abusive language that can intensify to physical injury.

Twenty-eight percent of workers surveyed said that at their current job, they have been personally affected by these types of incidents or violence. Another 12% have witnessed, heard about or are aware of significant harm to others at their jobs, while 5% reported they have personally been affected by this type of incident.

The survey also asked workers how they felt about safety on the job. Fully one-third said they are very or somewhat concerned with their personal safety. In contrast, 29% of workers who experienced, witnessed or heard about an incident of violence neither reported it nor took any other action.

The survey also found that, while the vast majority of employers (94%) took some action as a result of reports of workplace violence, only 53% took disciplinary action. The percentage of employers who implement training for workers or supervisors was also low (45% and 35%, respectively).

Experiencing violent incidents on the job can encourage employees to seek a new position. According to the survey, 28% of those who know about or experience workplace violence are looking for a new job, compared to 17% of those who have not.

Employers owe it to their workers to provide a safe and healthy work environment. It starts by paying attention to the culture of the workplace, and instilling good practices and procedures. A no-tolerance approach to bullying, abusive language and inappropriate behavior, backed up by disciplinary action for every incident, will empower all employees to help prevent workplace violence before it happens.

And don’t neglect to conduct thorough pre-employee screening on each prospective employee. Knowing an applicant’s criminal history is vital to keeping your workplace and employees safe from potential harm.

A safe workplace sees less turnover and higher morale, and increased productivity. And it’s what every employee deserves.

Employer Claims Ownership of Twitter Account in Lawsuit

Saturday, February 18th, 2012

employee screening, employee background checkIn today’s business world, many firms hire a social media manager , who is in charge of a company’s Facebook page, Twitter account, YouTube channel, and other social media marketing platforms. They’re tasked with promoting the company, gaining followers and engaging customers.

In other organizations, employees have a looser affiliation with the company’s official social media presence. They may have a personal Twitter account where they post both business and individual messages.

A new lawsuit is bringing the value of a social media account into question. Namely, can a company claim ownership of an employee’s social media account?

In this case, an employee for, a mobile phone site, set up a Twitter account under the handle Phonedog_Noah that grew to 17,000 followers. He left the company, which at the time said he could keep his Twitter account if he tweeted on the company’s behalf from time to time. He agreed and changed his handle, but kept his followers.

Eight months later, PhoneDog Media sued him, saying the follower list was a customer list that the company owned. It sought damages of $2.50 per follower per month—a total of $340,000. The employee claims the suit is in retaliation for his own lawsuit against PhoneDog for unpaid wages and profits. He also disputes the worth of the Twitter followers.

This case puts the spotlight on an increasingly difficult problem for many employers. While tweeting and posting to Facebook or LinkedIn are often assumed to be an employee’s prerogative, which can improve (or at times, harm) the company’s reputation, while enabling employees to network and learn information that can improve their job performance.

The California District Court, which is hearing the case, may issue a ruling that puts the decision back in Twitter’s hands. After all, Twitter owns the entire site and everything that happens on it.

Companies that wish to avoid such interruptions and expenses should immediately craft clear social media policies, covering questions about ownership and portability.

When hiring new employees, be sure to conduct proper background screening. The best pre-employment screening process includes employee background checks, employee credit checks, and criminal background checks. You’ll know you’re hiring safe when you screen employees before offering a position.

Creating a Comfortable Workplace For Everyone

Monday, January 16th, 2012

employeescreeningblog, employee screening, pre-employment screeningFor employers, hearing that yours is a toxic work environment is not good news. Whether it’s flirtatious co-workers, religious displays, bullying or inappropriate language, there are dozens of factors that can cause people to feel uncomfortable at work. On one hand, this type of environment can hurt employee morale, and cause higher levels of turnover. Under more serious circumstances, it can lead to lawsuits.

How can employers and HR managers create a work environment where every employee feels respected and comfortable? Here are a few tips that can help you shape a clear policy, so everyone knows what’s expected and what types of behavior will not be tolerated.

  1. Gather information: First, meet with employees who have expressed dissatisfaction with the work environment. You can do this individually or in groups. Ask them to share any details of inappropriate or hurtful behavior, without naming individual employees who have perpetrated the behavior.
  2. Create a list of workplace rules: Call it a code of conduct, a mission statement or a new company policy—whatever works. Take the information from the interview process and determine what is and is not acceptable. You may include items about personal behavior, such as treating employees and customers with respect, not harassing or bullying, and using language appropriate for the workplace.
  3. Communicate the rules to all employees: It’s important that staff and management alike understand that the new rules are to be taken seriously, and that infractions will not be tolerated. Disseminate the rules in whatever manner your company typically communicates important policies, and add it to the employee manual.
  4. Follow up: Handle each new complaint as it arises. Deal with the facts and avoid judgment. Clarify what happened and explain how it made the affected employee feel. Then make it clear that this behavior goes against company policy and will not be tolerated.

No employee deserves to work in a toxic environment. Make sure yours doesn’t fall into that category by following these simple steps.

Employment Credit Checks Prohibited in California

Thursday, December 8th, 2011

employee screening, employee credit checkCalifornia recently became the seventh state to prohibit credit checks in making employment decisions. Effective January 1, 2012, the law outlaws most employee credit checks. It states that employers may only use consumer credit reports when hiring for:

  • Managerial positions
  • Prospective law enforcement officers
  • Jobs that provide access to consumer credit card applications
  • Positions in the state Justice Department
  • Jobs in which the employee would have access to confidential information
  • Positions where the employee would be a signatory on a bank or credit card account
  • Jobs in which the employee would have access to cash totaling $10,000 or more

The U.S. Equal Employment Opportunity Commission held hearings in October around the issue of employee credit checks, which some employers see as a signal that additional legislation could be coming.

One concern is that more people have experienced damaged credit ratings in the wake of the economic crisis. However, employers’ groups said that it is wrong for the government to infringe on the ability to screen out applicants who have the potential to damage or bankrupt a company.

In addition, the patchwork of statutes being enacted by various states makes it more difficult for national companies to stay in compliance, say employer representatives.

Experts say that it’s important for employers to be extremely consistent in how they apply employee credit screening policies. It’s also a good idea to talk to prospective employees about any problems revealed in credit reports.

When You Suspect an Employee is Under the Influence

Thursday, October 6th, 2011

employee pre screening, employee background check, credit check employeeMost employee manuals are clear about using alcohol or drugs (other than prescribed medication) on the job: it’s a big no-no. That doesn’t mean employees don’t have problems with alcohol or drugs to the point that they use during working hours. If you’re an employer, you will likely run into this problem, if you haven’t already.

What can an Employer Do When an Employee is Using Drugs or Alcohol on the Job?

  • Don’t ignore the problem. If it’s happening, other employees probably know about it. They are probably uncomfortable about it. At the very least, it is creating a negative environment; in any case, it is a potential safety issue and your customers, employees, and the public are at risk of harm. So if you smell beer or marijuana on an employee, see red eyes, notice they’re having trouble concentrating or walking in a straight line—that is the time to act.
  • Have the conversation. As difficult as it may be, if you have reason to believe an employee is using drugs or alcohol on the job, or coming to work under the influence, by all means ask. Do it discreetly, in private. Make sure you have someone else in the room with you, besides the person you’re questioning.
  • Use whatever disciplinary action you have available. If the employee manual states that drinking or using drugs on the job is grounds for termination, then you have a decision to make. Does the use directly affect others? Does it put others or the employee in danger? What about customers and the general public? What is the affect on the company if the employee’s actions have the worst outcome? Note: If the employee manual does not address employees who come to work under the influence of drugs or alcohol, you probably need to expand on that topic.
  • Show you care, but don’t preach or give advice. Remember, it’s your responsibility as the employer to enforce the rules and keep everyone safe. It’s not your job to provide counseling. If your company has an employee assistance plan, refer the person to HR for more information.
  • Beware: employees with chronic drinking or drug problems may be covered under the American with Disabilities Act. Be sure you have sound legal counsel when dealing with this situation. For example, you may not be able to terminate an employee for being an alcoholic; however, an employee’s inability to meet productivity standards is a different story.
  • Similarly, drug testing is a sticky area for employers. You need to be keenly aware of the laws in your state to avoid any illegal testing or violating privacy laws. Seek legal advice before doing any drug testing.

Conducting Informal Social Media “Background Checks” is Risky

Saturday, September 17th, 2011

credit check, background check, employee background checkLegal experts say that employers who perform Internet searches on employment candidates risk violating employment and privacy laws. At a recent conference, employment attorneys warned that Googling applicants is akin to interviewing them, and employers should avoid doing so.

Internet searches can lead to inappropriate or incorrect assumptions about a candidate. For example, seeing photos of an applicant in which she is drinking, attending a religious service, protesting for a cause or in a hospital bed can automatically bring about questions or judgments that have nothing to do with her skills or ability to do the job. You cannot ask her about her religion or health in an interview, so why would you subject the candidate to an online search of her personal life in which these topics come up?

In addition to jumping to conclusions, there is also the chance of mistaken identity. There are plenty of people who share names, but nothing else. One John Doe is a successful and respected business professional, while the next John Doe has an extensive criminal background. You can’t be 100% sure that you’re looking at your applicant’s profile unless he has given you access to it.

The attorneys advise that employers should obtain an applicant’s permission before conducting an Internet search, and then give them the opportunity to explain any questions that come up.

The conference attendees also heard advice about using caution when determining how employees can and should use social media. Policies should be established that set guidelines for employee use, to prevent them from harming the firm’s reputation or business.

In a related matter, employers should also review their liability insurance policies to be sure that they are covered in case of lawsuits stemming from employee or employment candidate use of social media.

Employers in every industry are vulnerable to sensitive data theft, financial losses, security breaches, and safety issues. Pre-employment credit checks and criminal background screening on all applicants can protect your company and your staff from possible harm.

What Employers Need to Know About Reasonable Accommodation Under the ADA

Thursday, July 14th, 2011

"employee credit check, employee background check"The Americans with Disabilities Act (ADA) protects people with disabilities against job discrimination. Employers, including private companies, state and local governments, labor organizations and labor management committees may not discriminate in recruitment, pay, hiring and firing, promotions, training, leave, benefits, job assignments and all other employment-related activities.

Protection covers all aspects of work, including applying for a job, working conditions and benefits. Employers with 15 or more employees are also required to provide reasonable accommodation for employees with disabilities, unless it would cause undue hardship.

What is Reasonable Accommodation?
A reasonable accommodation is a modification or adjustment to a job, the work environment or the work method to enable an individual with a disability to enjoy the same employment opportunity, including equal benefits and privileges, as employees without disabilities.

Examples include:

  • Posting information about jobs in places that are accessible to everyone, in ways that visually and other impaired individuals may use them
  • Making facilities accessible
  • Job restructuring
  • Part-time or flexible work schedules
  • Acquiring new or modify existing equipment
  • Changing training materials and placement tests
  • Providing readers or interpreters

Does a Small Company Need to Install Elevators?
Not if it creates an undue hardship. Larger companies’ facilities typically accommodate wheelchairs in restrooms, elevators, workspaces and common areas. However, a small company may not be financially able to install an elevator for a worker with a disability. It’s possible to make other arrangements to accommodate the worker, such as creating a workspace on the ground floor and finding new meeting spaces that work for everyone.

Employers may also have to accommodate time for doctors’ appointments, if an employee’s disability is related to an illness that requires medical treatment. Keeping the lines of communication open from the start will go a long way in preventing resentment from other staff, who may view time off as special treatment. Collaborating on how to handle special requests is important for long-term success.

Remember, employers may not ask disability-related questions on job applications or before an offer of employment is made. However, they may evaluate whether an applicant is qualified for the job, including asking about his or her ability to perform specific job functions, asking about non-medical qualifications, and asking applicants to describe or demonstrate how they would perform tasks.

See more answers to your questions about employers and the ADA here:

Landmark Supreme Court Ruling Finds in Favor of Wal-Mart

Thursday, June 30th, 2011

employee screening criminaldata.comThe Supreme Court on Monday issued a decision with wide-ranging implications. In Wal-Mart Stores Inc. v. Betty Dukes et al., the largest class-action suit in U.S. history, the court found that there was not significant proof that the company operated under a general policy of discrimination.

The plaintiffs in the case claimed that Wal-Mart managers favored men when it came to pay and promotions. In 2001, six current and former employees filed a class action lawsuit. In 2004, a national class was certified that included all women who worked at Wal-Mart stores since December 26, 1998,.

The court’s ruling on Monday also found that there was not enough “glue holding together the alleged reasons” for millions of employment decisions. Therefore, there was no “class” that would justify the class-action suit filed by more than 1 million female employees.

Further, the court indicated that Wal-Mart’s announced policy forbids sex discrimination and the company has penalties for denials of equal opportunity. The respondents’ only evidence of general discrimination, the ruling said, was a sociologist’s analysis that said Wal-Mart’s corporate culture made it vulnerable to gender bias. The sociologist could not estimate what percentage of Wal-Mart’s employment decisions might be determined by “stereotypical thinking.”

The attorney for the plaintiffs indicated that thousands of individual claims could still be filed later in the year. They may try to formulate one or more smaller classes, where there is “substantial evidence of a policy of discrimination.”

The Wal-Mart decision sets forth new parameters for the way class action suits will be structured and litigated. In effect, each member of the class must be able to tell their story on the stand and it must be the same story for everyone else.

Wal-Mart and its supporters, including DuPont and Intel, said that such class actions can subject them to billion-dollar judgments and must be limited by rules governing who can join together to form a class.

The National Women’s Law Center said the decision was “devastating” and female workers everywhere will now face a “far steeper road to challenge and correct pay and other forms of discrimination in the workplace.”

Supreme Court Ruling Affects Employers

Thursday, March 3rd, 2011

employee screening blogMost employers know that federal law requires them to allow military reservists to take time off for training and service obligations—and most comply, even when losing an employee is difficult on the business.

But one reservist was fired from his job, sued his employer, and won. And the U.S. Supreme Court this week ruled in his favor in an employment discrimination case. The case was brought by Vincent Staub, an Army Reserve first sergeant, who was fired from his job after 15 years as a hospital angiograph technician.

Staub had no problems for the first ten years working at the hospital. But starting in 2000, a new supervisor would schedule him to work during times he was supposed to be at reserve training.

Then in 2005, Staub was called to active duty. Soon after, his supervisor accused him of violating a company rule and issued a disciplinary action against him. When he was fired, he sued the hospital. He alleged that his immediate supervisors were hostile to his military service and that they made false allegations upon receiving notification of his call to active duty.

Staub won his initial suit, but a federal appeals court threw out the award, ruling that the hospital could not be held liable because the decision to fire him was made not by his immediate supervisors, but by the VP of human resources, who had no such hostility to the military.

The Supreme Court, in a unanimous decision, reversed this decision, saying the liability for firing cannot be separated from a supervisor simply by giving the responsibility to a higher-up member of the management team. The justices ruled that discrimination did take place and cause an adverse employment decision.

This ruling could have far-reaching effects, encompassing discrimination claims based on race, gender and religion. Some employers have sought to protect themselves from such suits by putting final decision-making authority in an HR department; the Supreme Court ruling clearly states that this will no longer be a viable option.

Can Employers Terminate Employees for Social Media Mistakes?

Thursday, February 10th, 2011

One woman posted a photo of herself on vacation, holding a glass of wine. Another posted negative remarks about a supervisor. Others discussed their work environment on a private MySpace page.

What do these employees have in common? They were all fired, dismissed or forced to resign over these activities.

Is it okay to terminate an employee for their online actions? What about postings that are harmful to a company, its reputation, a supervisor, or co-worker? Where do employers draw the line when it comes to employees’ online behavior?

The new rules have not yet been sorted out. As some firms scramble to create social media policies, others are hands-off when it comes to how employees spend their free time.

A Social Media Policy Can Help
Cover the Content: We’ve all seen photos of company picnics that look like drunken free-for-alls. Prohibiting the posting of photos from company-sponsored events anywhere but on the official website, after approval by a content manager, is one way to establish control.

Reinforce that employees do not have free reign when it comes to badmouthing their employer or co-workers, on or off the job. Not only is it in bad form, it’s can be grounds for dismissal. Employers can be held responsible for what employees say or post; therefore, they have the right to limit it.

Establish boundaries. How does a view inside a co-worker or boss’s private life affect employee relations? What about knowing a staff member’s religious or political views? When does a “friend request” become creepy and harassing behavior? Decide whether or not it is permissible for a boss to friend a subordinate.

Realize you probably cannot establish broad policies such as prohibiting employees from referring to the company in any way on any social media site.