Can Hiring Practices Prevent Workplace Violence?

Background checks and tests could prevent violence

Posted by Janette Levey Frisch in on November 30th, 2015

You don’t need me to tell you that workplace violence has become an issue of increasing concern for employers and employees alike.  The Occupational Health and Safety Administration (OSHA) says roughly 2 million workers per year are victims of some type of workplace violence. According to the Bureau of Labor Statistics (BLS) nearly 5 percent of 7.1 million private industry establishments in the US had a workplace violence institute in 2005. The Society of Human Resource Management (SHRM) conducted a survey in 2012, in which 36 percent of respondents reported workplace violence incidents. I think we can all agree that’s not good. Can employers prevent workplace violence? If so, how?

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Before we can even try to prevent workplace violence, we need to define it and acknowledge, at least in general terms, its impact.

The most useful though not the only definition I have seen comes from the National Institute of Occupational Safety and Health (NIOSH). (By the way, in case you haven’t noticed, we are  now up to 4 acronyms and I’m less than 200 words into this post–just sayin’…) Oh, right the definition. NIOSH says it’s essentially any physical assault, verbal abuse or threatening behavior that occurs in a workplace setting. This definition would include threats, obscene phone calls, an intimidating presence and harassment. It’s a fairly broad definition, but I think we can work with it.

Aside from the very scary stories we hear about in the news –and I am in no way minimizing those–here are just some examples of the wide-ranging, far-reaching impact of workplace violence on the business organization and individuals:

  • Absence–temporary or permanent–of a skilled employee;
  • Decreased productivity;
  • Low morale among employees–and other psychological damage;
  • Diversion of management time and resources;
  • Increased security costs;
  • Workers’ compensation costs;
  • Legal fees;
  • Property damage, theft and similar issues;
  • Increased personnel and attendant costs.

OK, I think you get the idea.  What’s an employer to do? Tightening up your hiring and retention practices might help you minimize the above. Here are some examples:

Pre-Employment Background Checks: They’ve gotten a bad rap lately, but used correctly, they can often be an invaluable tool in getting an idea of whether the candidate presents a significant risk to employees’ and customers’ safety. In general, if you are going to conduct a background check, the safest route is to wait until you have extended a conditional job offer. If the report comes back with information indicative of violence, you will want to follow EEOC (acronym #5) guidelines and conduct an individualized assessment — and document your decision and the reasoning behind it. You should also make sure that you consult with competent employment counsel.

Interviews: Suppose your company interviews a candidate and either a) the interviewer suspects that s/he has a mental health issue or b) the candidate discloses a mental health issue that is generally controlled by medication. Is there anything you can do at the interview stage to predict or weed out someone who might be prone to violence? Obviously there are no guarantees and professionals in the field agree that there is no surefire way to predict if someone with a mental illness will become violent. Sometimes however there can be indications.

Now, we know that you cannot ask someone in an interview if they have a mental illness. We also know that you cannot require psychological testing at the pre-offer stage. Both of these practices have been found to violate the Americans with Disabilities Act (ADA) (By the way we’re up to 6 acronyms now.) You can, however, ask job-related questions. So, if the job itself might entail tight deadlines or other inherent stressors you can ask questions such as “Can you handle multiple daily deadlines?” “What are the five most stressful situations you encountered at work and how did you handle them?” “How have you handled stress in previous jobs?” “Who is your ideal boss? Co-worker?” “What is your ideal work environment?” “What type of work issues do you tend to find most troublesome and how do you handle them?” You get the idea. They don’t in and of themselves focus on the person’s limitations or perceived limitations. They focus on the job – even if it’s not specific functions or qualifications. You are allowed to ask questions related to how well an employee would fit within the company culture, how well the candidate would get along with co-workers and management. These questions relate to those concerns as well. These types of questions, if you ask them of all your candidates and not just those that you know to be or regard as disabled, should have no trouble passing ADA muster. This is another area where employment counsel can help you.

Pre-Employment Tests: This can be a bit trickier. The EEOC says they have to be job-related and consistent with business necessity. For example, some companies require candidates to take a test that measure a person’s likelihood to file less-than-good-faith workers’ comp or similar claims. If the company has incurred high costs in this area, and it can show that many claims have not been made in good faith, it may be able to justify such a test. Again, tests should be administered to all similarly situated candidates–and for medical tests you must extend a conditional job offer first. Not to sound like a broken record, but here too you should consult with competent employment counsel before you go this route.

Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people

 

Janette Levey Frisch
Janette Levey Frisch

Employment/HR Attorney

Employment and HR attorney Janette Levey Frisch has more than 20 years of legal experience, more than 10 of which she has spent in employment law. It was during her tenure as sole in-house counsel for a mid-size staffing company headquartered in Central New Jersey, with operations all over the continental US, that she truly developed her passion for Employment Law.

Janette works with employers on most employment law issues, acting as the Employer’s Legal Wellness Professional — to ensure that employers are in the best position possible to avoid litigation, audits, employee relations problems, and the attendant, often exorbitant costs.

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