Preventing Workplace Violence: Start with Careful Hiring Practices

By Martha Boyd October 23, 2017


This is the third in a series of articles about workplace security. This article examines best practices in the hiring process. Read the first part here, the second part here and the fourth part here.

When creating a workplace security plan, it's key to assess a business's internal vulnerabilities by reviewing how potential new hires are scrutinized.

Businesses that haven't been conducting background investigations before an applicant is hired may want to start. If background checks reveal criminal convictions, HR professionals should ask candidates about those convictions and make sure any explanations are consistent with what a background check reveals. A conviction for a violent act, such as assault—particularly if it was recent—may compel an employer to rescind an offer to an otherwise well-suited candidate.

Practical pointer: Some states have passed laws prohibiting employers from conducting background checks until applicants have received a conditional offer of employment—which many employers do anyway because they don't want to spend the money on an investigation until they are fairly certain that they want to hire the applicant. Additionally, employers should be careful not to have blanket policies disqualifying candidates from employment based on criminal records, and they must be sure not to run afoul of the Fair Credit Reporting Act's requirements.

[SHRM members-only toolkit: Conducting Background Investigations and Reference Checks]

Address Red Flags

Employers should address any gaps or missing information on a job candidate's application. On a recent application I reviewed for a client, I saw that the job applicant had refused to say whether he had prior criminal convictions (a question that is legal here in Tennessee but no longer legal in some states). No one asked why he neglected to answer the question, and no one followed up to ask him whether he had convictions. He was hired anyway.

Employers should also carefully review the answers to any question regarding past employers. Many applications ask if an employer may be contacted. If the applicant answers "no" about anyone other than a current employer, that should be a red flag. What is it that the applicant doesn't want you to know about that past work experience? I've seen other employees hired after they failed to answer questions about whether they had ever had their work licenses suspended or whether they had ever been fired because of misconduct or violence. The application may be the only insight a prospective employer has into an applicant's past. Therefore, managers should be trained to scrutinize applications and to look for and ask about any red flags.

Contact References

Many employers tell me they don't bother contacting applicants' past employers because they don't get helpful information when they call, as employers typically have policies that prevent them from providing more than the dates of employment and the position the applicant held.

I understand the frustration, but I encourage HR professionals to go through the exercise anyway. Sometimes you'll reach an employer who can provide some bit of information that is helpful. For example, if you ask if the employee is eligible for rehire and the employer says no, you may want to ask the candidate about his separation from that employer. You can always push for more information, and sometimes you'll get it—particularly from a smaller company where the applicant may have been well-known to the HR representative who takes the call.

Consider the Pitfalls of Personality Tests

Some employers have proposed using personality tests to weed out employees who would not be a good fit for their organizations, including employees prone to violence. While I applaud the effort, be aware that you could violate the Americans with Disabilities Act's (ADA's) prohibition on employer-required medical examinations if you use tests that inadvertently reveal an impairment in the employee's physical or mental health. Further, the Equal Employment Opportunity Commission (EEOC) takes the position that personality tests can violate federal anti-discrimination laws if they disproportionately exclude certain classes of people based on a protected status such as race or sex.

In 2015, the EEOC challenged Target's pre-employment testing model for disproportionately screening out applicants based on race and sex and violating the ADA. Target resolved that challenge by paying a $2.8 million settlement. If you use personality tests, proceed with caution.

Martha Boyd is an attorney with Baker Donelson in Nashville. 


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