Monthly Archives: July 2017

Fundamentals of Labor Law

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.” However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I. The Importance of Having an Effective Harassment Policy

A. The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”

The importance of the affirmative defense was significantly increased by a U.S. Supreme Court’s decision in which the Court held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.

B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.

(1) Write in simple English.

(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3) State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4) Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company.

(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.

(6) Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7) State that employees who report prohibited conduct will be protected from retaliation.

(8) State that the employer will promptly investigate the matter in an objective and discrete manner.

(9) Provide the form of disciplinary action to which offenders can expect to be subjected.

(10) State that the employer will also take remedial action.

(11) Train your management employees and line employees on the policy and procedure.

(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.

C. The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3) That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D. Problem Areas for Employers

1. Failure to disseminate policy

2. Inadequate complaint procedure

3. Employer on notice of harassment

4. Failure to promptly investigate

5. Failure to take appropriate disciplinary action

6. Failure to apply it even-handedly

7. Failure to review and revise when necessary

8. Failure to provide training

E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In a recent decision, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard. As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.” The Court rejected the employer’s argument that federal case law should apply to the case.

II. The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment. Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant. Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace. Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A. Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.” §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention. Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival.

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge. Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law-especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B. Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense. The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C. Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law. Under Hawaii law, however, courts may award unlimited punitive and compensatory damages.

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act. See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D. Training to Reduce Exposure to Punitive Damages

The U.S. Supreme has Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.'” Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Effective Pre-Work Background Filtering

In today’s competitive economic environment, firms cannot afford to be side-tracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers have increasingly turned to pre-employment screening as a critical risk-management tool to try to avid hiring problem employees in the first place.

At the same time, companies are becoming more cost conscious as well. Despite the obvious benefits of pre-employment screening, management often expects security and human resources professionals to produce more results with fewer resources. The challenge facing security and human resources professionals is finding ways to implement an effective pre-employment screening program that is also cost-effective.

Such a program has four goals:

– First, the program must demonstrate that an employer utilizes due diligence in hiring. That means that an employer takes reasonable steps to determine a job applicant is fit for the job. This can protect an employer from claims of “negligent hiring.”

– Second, effective screening obtains factual information about a candidate, to supplement the impressions obtained from an interview alone. It is also a valuable tool for judging the accuracy of a candidate’s resume.

– Third, effective pre-employment serves to discourage applicants with something to hide. An applicant with serious criminal convictions is less likely to apply at a firm that announces it does pre-employment background checks.

– Finally, a background-screening program should encourage applicants to be very honest in their applications and interviews. Since applicants are told there is a background check, they have a motivation to reveal information about themselves they feel may be uncovered with a check.

Many firms view pre-employment screening as a process that starts after an applicant has been selected by a hiring manager or department, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security. In a typical screening program the emphasis is on checking for criminal records, as well as other background searches that are commonly available.

An effective background-screening program, however, is much more then just checking criminal records after a candidate has been selected. In fact, an effective background screening program starts even before the first resume is received or the first interview is conducted. It requires a company-wide commitment to a safe hiring by everyone involved with hiring. Recruiters, hiring mangers and interviewers must understand safe hiring practices are not something someone else takes care of after they make a hiring decision. It is part of their responsibilities as well.

The following steps can increase the effectiveness of a screening program. However, they all take place before a hiring decision is made and before a background report is requested. They also take relatively little time and money compared to the benefits a firm receives.

These nine steps rely upon two vital factors. First, they utilize multiple and overlapping tools that approach the task from different directions. There is no one screening tool that all by itself guarantees an effective screening program. Second, they require the department in charge of background screening to recruit and educate everyone in the hiring process to become involved in safe hiring, starting with the person who places ads in the newspaper.

These nine steps are:

1. Job announcements, such as newspaper ads, should clearly indicate the firm requires background checks. This discourages an applicant with something to hide by clearly stating in the public announcement for a job opening that the company does screening. Employers find good applicants are not discouraged from applying at companies that do background screening. Employees are just as anxious as employers to work in a safe environment with qualified and honest people.

2. All applicants must sign consent for a background check, including a specific consent for criminal records at the time they submit an application or resume. This serves two vital functions in the screening process. First, it makes it very clear to a job applicant that criminal records will be searched. An applicant with a criminal record they want to hide may apply instead with a firm that does not perform screening. Second, some individuals may voluntarily disclose a prior difficulty. For some positions, a minor criminal violation honestly disclosed may not necessarily eliminate a person from consideration if the criminal offense is not related to the job.

There are some companies that do not use application forms, but instead hire based upon resumes. In that situation, a company can prepare a supplemental release form for the applicant to complete and sign. Some firms include a supplemental sheet in their applications asking a candidate specifically if they have any concerns about a background screening and whether there is anything they wish to bring to the company’s attention. This is an excellent device to focus applicants on the fact a thorough investigation will be conducted as part of the hiring process.

3. Include language in the consent concerning a release of records from foreign countries. Doing pre-employment screenings and criminal record checks in foreign countries can be difficult and expensive, and in many instances are not even possible. One approach, however, is to add specific language to a background form indicating the release to search for criminal records also applies to any jurisdictions outside the United States. That may cause applicants from abroad to either self-disclose problems or apply elsewhere.

4. Applicants should be asked directly if they have a criminal record in the interview and employment application. It is crucial that applicants be asked directly during the process if they have a criminal conviction or pending case. Ideally, that language should be in the employment application. During oral interviews, part of the standard questioning should be, “If we were to check with the courts, would we discover any criminal convictions or pending cases?”

In asking about criminal records, employers should keep the following in mind:

a. Always ask the broadest question allowed by the law in your state. Some employers are under the mistaken belief they can only ask about felonies. However, misdemeanor convictions can also represent serious crimes, and should be included as allowed by state law.

b. Employers should carefully phrase the question in order to not elicit any information about arrests not resulting in convictions. Employers are generally limited to convictions or pending cases.

c. Ask the applicant to describe any convictions or pending cases and give the specific location. This allows the employer to pull the court file and to determine if the applicant is truthful about the nature of the criminal case. It is also critical to ask for the exact location so the employer or background checking company knows exactly what court to search.

d. In any written application or release asking about criminal convictions or pending cases, the form also should contain the language to ensure compliance with discrimination laws. For example, “This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company, however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.

5. The employment application must clearly state that any false or misleading statements or material omissions is grounds to terminate the application process, or to terminate employment if it has begun, regardless of when the information is discovered. This is another critical part of an effective program. Employers generally cannot deny employment automatically because of a criminal conviction without taking certain factors into consideration. However, where a person has lied on their application by not admitting a prior criminal conviction in a response to a direct question, the lack of honesty is a valid reason for a rejection. An applicant needs to clearly understand dishonesty can lead to termination no matter when it is discovered.

6. If the background screening may not be completed before the start date for the position, make sure the applicant understands any employment is conditioned upon the employer’s receipt of a background report that is satisfactory to the employer. Sometimes employment will begin prior to the background report being completed. In those situations, it is important to notify the applicant, preferably in writing, that employment is subject to the employer’s receipt of a background report. It is also important the employer clearly state the background report is subject to the employer’s satisfaction only, so a job applicant cannot debate whether a report is satisfactory or not.

7. Check past employment references. Checking references is an essential part of the screening process. In fact, it can be just as valuable as a criminal records search. It would be difficult, if not impossible, to defend an employer sued for negligent hiring that failed to confirm a person’s past employment history. Even if previous employers limit the information to just start date, end date and job title, that information is still invaluable. The primary purpose of such a search is to confirm an applicant’s whereabouts for the past five to seven years and to make certain there are no unexplained gaps in employment. By knowing where a person has been, an employer limits the possibility that an applicant spent time in custody for a criminal offense.

It also assists an employer in determining what jurisdictions to search for criminal records. This is important because there is no such thing as a national criminal record search for most employers. Employers can only obtain criminal records by searching individual courthouses. Since there are more than 10,000 courthouses in America, it is important to know where to look.

Of course, an uninterrupted work history does not guarantee a lack of a criminal record. Some jurisdictions allow jail sentences to be served on weekends or through a work furlough program where a prisoner is released during working hours. However, when done in conjunction with all the other steps, checking past references is a vital part of the program.

8. Obtain a listing of all past addresses. Another important step is to include on the consent form a listing of all addresses for the past seven years, as well as the approximate time at each address. This not only reinforces in the applicant’s mind that the company is serious about screening, but it assists the employer in determining which jurisdictions to search for criminal records.

9. Include future screenings in the consent language. Every consent form should include language that the consent for a background screening allows for future background checks for purposes of promotion, reassignment or retention, unless otherwise revoked in writing. This serves three important purposes. First, it reinforces the idea the employer is serious about maintaining a safe workplace. An employee is on notice that they are subject to future investigations. Second, this language facilitates future investigations if necessary for claims of harassment, theft, violence or other difficulties. Finally, the language is also important due to recent interpretations of the federal Fair Credit Reporting Act, the federal law that governs pre-employment screening by outside agencies. This language in the release form makes it easier for an employer to utilize the services of an outside agency to conduct future investigations if workplace issues arise.

In addition to these nine steps, an employer also must perform additional checks to satisfy due diligence. The most important of these are courthouse searches for criminal records. There are other checks that can be performed as well. However, these preliminary steps that occur before a person is even hired can dramatically increase the effectiveness of a screening program. These steps also have the advantage of promoting workplace safety with very little additional costs. By enlisting everyone in the hiring process from the beginning, firms can dramatically increase the effectiveness of their screening programs.

Lester S. Rosen is an attorney at law and President of Employment Screening Resources, a national background checking company located in California offering employment screening services such as employee background screening, job verification, and credential verification.

He is the author of, “The Safe Hiring Manual–Complete Guide to Keeping Criminals, Imposters and Terrorists Out of Your Workplace.” (512 pages-Facts on Demand Press), the first comprehensive book on employment screening.

He is also a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. He has qualified and testified in the California, Florida and Arkansas Superior Courts as an expert witness on issues surrounding safe hiring and due diligence. His speaking appearances have included numerous national and statewide conferences.

He is a former deputy District Attorney and criminal defense attorney and has taught criminal law and procedure at the University of California Hastings College of the Law. His jury trials have included murder, death penalty and federal cases. He graduated UCLA with Phi Beta Kappa honors, and received a J.D. degree from the University of California at Davis, serving on the Law Review. He holds the highest attorney rating of A.V. in the national Martindale-Hubbell listing of American Attorneys. Mr. Rosen was the chairperson of the steering committee that founded the National Association of Professional Background Screeners (NAPBS) a professional trade organization for the screening industry, which now has over 500 members. He was also elected to the first board of directors and served as the first co-chairman in 2004.

Entrepreneurs and Safe Safe Giving Practices

On one hand, they know that if they don’t take measures to conduct pre-employment screening and exercise due diligence in hiring, it is a statistical certainly they are sitting ducks for expensive litigation, workplace violence, false claims, theft, embezzlement and economic loss.

Just one bad hire can cost a firm literally millions. Studies show that screening reveals criminal records for up to 10% of job applicants, and at least one-third of all resumes contain materials falsehoods. For food establishments, manufactures, hotels and other business that have a national brand, one negative employee caused event can result in damaging national publicity and significant harm to the brand.

The catch, however, is that large hourly employers face enormous financial and logistical challenges in implementing safe hiring programs. Screening large numbers can be expensive and time consuming. Some industries hire at multiple locations, and can experience large turnover.

The problem is compounded when firms hire seasonal, temporary or contract workers as well. Such industries can include hospitality, manufacturing, service, retail, food and restaurants, and tourism. The challenge is how industries with a large numbers of hourly, seasonal, temporary or contract workers or significant turnover, can protect themselves in a cost-effective and efficient manner.

The answer is probably less complicated then it first appears-due diligence and safe hiring does not require a large budget when employers implement a safe hiring system, as opposed to buying background checks.

Many firms make the mistake of believing that in order to show due diligence, they need to spend a great deal of money to perform background checks and criminal record research. These firms view pre-employment screening as a process that starts after a hiring manager has selected an applicant, and the name is submitted to security or human resources for a background report. Depending upon the employer, it is either outsourced to a background company or investigated internally through corporate security.

An effective background-screening program, however, does not need to cost a great deal of money because it is much more then just checking background and criminal records after a candidate has been selected. In fact, in an effective safe hiring system, the primary tools are the application, interview and reference checking process, also known as the AIR process. These processes are performed in-house as part of the routine hiring program, and do not cost employers a dime, as long as it is followed. A brief review of the AIR process is contained in the attached Safe Hiring Checklist.

AIR PROCESS

1. Use an application form, not just resumes.

Use of an employment application form is considered a best practice. Resumes are not always complete or clear. Applications ensure both uniformity and that all needed information is obtained, prevents employers from having impermissible information, and provides employers with a place for applicants to sign certain necessary statements.

2. Make sure the application form contains all necessary language.

a. Use the broadest possible language for felony and misdemeanor convictions and pending cases. One of the biggest mistakes employers make is to only ask about felonies on an application form since misdemeanors can be very serious. Employers should inquire about misdemeanors to the extent allowed in their state.

b. Statement that criminal records do not automatically disqualify an applicant. This is important for EEOC compliance. It is critical for employers to understand that the background screening is conducted to determine whether a person is fit for a particular job. Society has a vested interest in giving ex-offenders a chance. However, an employer is under a due diligence obligation to make efforts to determine if a person is reasonable fit for a particular position. For example, a person just out of custody for a violent crime would not be a good candidate for a job that require them to go into people’s home, but may perform very well on a supervised work crew. If a criminal record is found, an employer must determine if there is a business reason not to hire the person, based upon the nature and gravity of the offense, the nature of the job and when the crime occurred. There are also limitations to the use of arrests not resulting in a conviction, and a number of states also have rules about criminal records.

c. Statements that lack of truthfulness or material omissions are grounds to terminate the hiring process or employment no matter when they are discovered. This is particularly important if a criminal record is found. Although a criminal record may not be used automatically to disqualify an applicant, the fact an applicant has lied about a criminal matter can be the basis for an adverse decision.

3. Require a release for a background check in the application process.

Have each job applicant sign a consent form for a background check, including a check for criminal records, past employment and education. Announcing that your firm checks backgrounds may discourage applicants with something to hide, and encourage applicants to be truthful and honest about mistakes they have made in the past. If a firm outsources to a third party vendor, then under the federal Fair Credit Reporting Act (FCRA), there must be a disclosure on a separate standalone document.

4. Review the application carefully.

In most instances, when there is an employee problem or lawsuit, a careful review of the application would have alerted the employer in advance that they were hiring a lawsuit waiting to happen, Look for the following red flags:

Applicant does not sign application.

Applicant does not sign consent or background screening.

Applicant leaves criminal questions blank (the honest criminal syndrome-dopes not want to lie about a criminal past).

Applicant self-reports a criminal violation (Applicants can self report matters incorrectly.)

Applicant fails to explain why he or she left past jobs,

Applicant fails to explain gaps in employment history.

Applicant gives an explanation for an employment gap or the reason leaving previous job that does not make sense.

Excessive cross-outs and changes (as though making it up as they go along)

Applicant fails to give complete information (i.e. insufficient information to identify a past employer, leaves out salary, etc).

Applicant failed to indicate or cannot recall the name of a former supervisor.

5. In reviewing applications, look for unexplained employment gaps.

It is critical to verify past employment to determine where a person has been for the last 5-10 years, even if you only get dates and job titles. Look for unexplained gaps in employment. Generally, if you can verify that a person was gainfully employed for the last five to ten years, or their whereabouts can be verified it is less likely the person spent time in custody for a serious offense, although this does not eliminate the possibility of lesser offenses.

6. In reviewing applications, examine reasons for leaving each job.

7. Always ask these five questions (during housekeeping stage of interview).

Since they have signed consent and believe you are doing checks, applicants have a powerful incentive to be truthful. These questions are the equivalent of a New Age Lie detector test. Good applicants will shrug it off and applicants with something to hide may reveal vital information.

a. We do background checks on everyone we make an offer to. Do you any concerns about that you would like to discuss? (Good applicants will shrug off)

b. We also check for criminal convictions for all finalists. Any concerns about that? (Make sure the wording of the question reflects what an employer may legally ask in that state)

c. We contact all past employers. What do think they will say?

d. Will past employer tell us that e.g. your were tardy, did not perform well etc.

e. ALSO, use interview to ask questions about any unexplained employment gap

8. Check references and look for Unexplained Employment Gaps:

Verifying past employment is one of the single most important tools for an employer. It can be as important as doing criminal checks. Past job performance can also be an important predictor of future success. Some employers make a costly mistake by not checking past employment because they believe past employers may not give detailed information. However, even verification of dates of employment and job titles are critical because an employer must be concerned about unexplained gaps in the employment history.

In addition, documenting the fact that an effort was made will demonstrate due diligence. Although there can be many reasons for a gap in employment, if an applicant cannot account for the past seven to ten years, that can be a red flag.

It is also critical to know where a person has been because of the way criminal records are maintained in the United States. Contrary to popular belief, there is not a national criminal database available to most private employers. Searches must be conducted at each relevant courthouse, and there are over 10,000 courthouses in America. However, if an employer knows where an applicant has been as a result of past employment checks, it increases the accuracy of a criminal search, and decreases the possibility that an applicant has served time for a serious offense.

After the AIR process, a firm is well advised to perform a criminal check. The good news is that with an effective AIR process, the possibility of locating a serious criminal record is greatly reduced. A firm can dramatically lower their cost by concentrating on the most recent counties where an applicant resides or spent a long period of time. Some experts contend that statistically, a person is more likely to commit a criminal offense in their county of residence. As a result, a check of the county of current residence gives an employer the most return for the expenditure.

An employer may wish to do a more in-depth search depending upon the type of position. An employer may want to review those positions with a greater risk for increased scrutiny, such as:

a. Supervisors

b. Workers handling cash or Personal Identifyable information (PII).

c. Remote or unsupervised workers

d. Workers that go into people’s homes

e. Workers with Access to assets

f. Vendors

g. Temporary workers

h. Contractors

Employers who hire vendors, temporary employees or contractors can insist that the provider of these services do screening. Many firms may have janitorial crews in the faculties at night, or vendors supplying vital parts or services. Employers are within their rights to insist that third party provider certify that they have performed checks as well.

Implementing a Program throughout the company

The biggest challenge for an organization is to promote safe hiring and due diligence across an organization. The goal is to ensure that hiring managers across different divisions and sometimes across different physical locations follow procedures and pay attention to safe hiring.

The answer is to set up a S.A.F.E. Hiring System. It stands for:

S-Set-up a program, policies and procedures to be used throughout the organization, including the AIR process

A-Acclimate/train all persons with safe hiring responsibilities, especially hiring
managers.

F- Facilitate/Implement the program.

E-Evaluate and audit the program by making sure that everyone responsible understands that their compensation and advancement is judged in part by the attention they pay to the hiring process. Organizations typically accomplish those things that are measured, audited and rewarded. The attached chart will help supervisors implement the program and for management to audit hiring practices.

Help for wretched worker employees at work

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death. That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies. Therefore, a thorough interview with a potential client should determine:

• Whether that person suffered an injury at the workplace;
• Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
• Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
• Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
• Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
• Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
• Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS
Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness. The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions. The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent. See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability. Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary. That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions. However, these employers will not be required to make accommodations which will cause an undue hardship. Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions. It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations. Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin. U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.