Virginia Shooting Raises Questions About Background Checks

site-header-logo-pngFirst, let me say that most shootings (including the recent incident in Virginia) are random acts of violence by crazy people.  It is difficult, if not impossible, to predict when an employee will snap, or whether an ex-employee is likely to return to the workplace with a vengeance.  That said, the recent Virginia case has prompted a number of questions about what steps, if any, prudent employers can take to weed out applicants with clear histories of violent or confrontational episodes in the workplace.   Here, the shooter had been discharged from WDBJ, and escorted from the building by police two years earlier, after confrontations with coworkers.  It appears as if one of the victims had, in fact, complained to Human Resources about the shooter, which had prompted him becoming a target.

Through the news coverage, we now know the shooter had been previously terminated from a Florida television station after threatening fellow employees, and had similarly blamed his problems at that location on unfounded allegations of racism.  None of this, of course, was known by WDBJ when the shooter was hired and raises the question  — what could have been done to lawfully obtain such information and could it have even been used to deny employment?  The simple answer is that federal law (and most states) prohibit an employer from relying upon past complaints or lawsuits about discrimination as an employment criteria.  EEOC charges of discrimination do not appear on background checks, and most checks do not include civil discrimination suits.   In most cases like this one, the only way to get a hint of the employee’s prior behavior is either directly from the employee in an interview or from the prior employer through a reference check.

The sad reality is that reference checks have largely become a waste of time.  Concerns over defamation lawsuits have led most companies to say nothing or, at most, they just reveal “name rank and serial number” in the form of dates of employment and positions held.  Some employers are so concerned about loose-lipped employees that they have delegated this function entirely to third party vendors.  The takeaway from this incident is that the interview process is not just about identifying qualified employees anymore.  Interviewers need to be trained to measure, on a basic level, the emotional and psychological condition of the applicant.  Lots of areas are legally off limits (like past racial complaints) but problems getting along with coworkers are fair game.  Sometimes, more can be discovered by HOW an applicant answers a question (or avoids a question) as opposed to what is actually said.   No employer is perfect and bad apples will slip through the cracks, but prudent employers will take the interview process seriously as perhaps the best and only opportunity to avoid a future incident of workplace violence.  Some practical tips in this area include:

  1. Be thorough in checking references – you never know if you will get lucky and someone will talk.  Sometimes you can pick up cues in the tone or demeanor of the past employer’s refusals to answer your questions.
  2. Hire a good background check vendor.  For example, do you know which states are being checked for criminal histories?  Are you doing a national search or just your home state?  If you are only checking states where the applicant lived, what if they lie?
  3. Train, train, train your interviewers.   Security personnel at airports are trained to spot terrorists boarding planes by just asking questions.  No one expects your hiring team to be this proficient, but throwing an untrained manager into an interview with a list of questions on a napkin is not a recipe for success.
  4. Don’t be afraid to ask tough personal questions. Know the legal boundaries but understand that the damage done by a poor hire almost always outweighs the risk of a lawsuit arising out of a misconstrued question.
  5. Consider using standardized personality assessments as part of the hiring process.   Yes, these tests must be validated as job related and can raise legal considerations.  That said, they are valuable tools and can be used lawfully with quality legal guidance.
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About HR Headaches
HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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