Lawsuit Avoidance Rule #1—Reject Troublemakers Up Front

The best and easiest way to avoid employee lawsuits is don't hire troublemakers. But that's easier said than done.

First, there's the positive side—hire people that fit, that are well-qualified, and that will be happy in their jobs. "Happy people don't sue," some experts say.

And there's the other side of the coin—avoiding the troublemakers who are either itching for an excuse to sue, or who are likely to do things that make others sue. (To harass, for example.)

Many managers take the care necessary to conduct meaningful interviews and then drop the ball on background checking. Time after time, managers who trust their intuitions find out too late that they've made a mistake. Their new hire—who was impressive during the interview—turns out to be dishonest, undependable, drug-addicted, incompetent or, worse, violent.

Identify and Reject

Fortunately, most problem employees can be identified and weeded out during the hiring process. And it's far better to keep them out of your organization than to have to deal with them after they are hired.

More often than not, says one attorney, when he goes back into the work history of an employee who has sued or who has caused a lawsuit, he finds clear evidence of prior problems:

•Employees who sue often have sued before.
•Employees who commit violence often have committed violent acts in the past.
•Employees who harass or who make trouble often have harassed or made trouble for other employers.

Evidence Is Often in Plain Sight

Often evidence indicating a troublemaker is right on the application or the resume. There may be gaps in the employment history, or a number of jobs that lasted only a few months, or "red flag" reasons for leaving prior jobs, such as "poor management," or "disagreed with policies." Perhaps there are good explanations, but these are warning signs—follow them up with thorough questioning during your selection process.

Evidence Is Readily Available

In other cases, information that would cause you to reject an applicant is readily available from outside sources—phone calls to former supervisors and routine background checks.

Listen During the Interview

Candidate answers during the interview often raise red flags. Do you get vague answers regarding duties and accomplishments? Is the candidate unable to explain gaps in employment or reasons for leaving jobs? Follow through for details. Ask what, why, who, where, when questions.

Liability for Poor Hiring Decisions

What liability might you face if you don't take due care in the hiring process?

Negligent hiring.

If you knew, or should have known, that an applicant was unfit for a job or had a propensity toward violence, but you hired the person regardless and the person harms someone, the person who is hurt may sue you for negligent hiring.

Negligent retention.

Similarly, if you become aware that a current employee is violent and you fail to discharge the person, you may be liable for negligent retention.

The best way to avoid liability for poor hiring decisions is to take extreme care in the hiring process.

Criminal Background Checks

Both federal and some state laws require criminal background checks for certain jobs.

Federal law. Federal law requires:

•Background checks for applicants for childcare jobs with federal agencies and contractors. This requirement covers jobs in education, day care, foster care, residential care, and rehabilitative care.
•Fingerprinting of securities exchange employees, including dealers and brokers.
•Background checks on truck drivers and on employees who will have access to nuclear power plants.

State law. Some states specifically require employers to run criminal background checks on job applicants.

States have traditionally required background checks on law enforcement applicants, security personnel, and teachers. But since the early 90s, state legislatures have widened the scope of jobs for which checks are required, adding jobs that involve work with vulnerable populations, such as children, the developmentally disabled, and incapacitated adults. Check the laws of your state.

To avoid hiring troublemakers:
• Do consistent, detailed reference checks
•Be sure to talk to current or former direct supervisors.
•Explore the red flags uncovered on the application and during the interview.
•Stick with questions about performance on the job.
•Engage a professional agency to conduct background checks appropriate to the position.

One of the most effective checks you can do is just to compare all the information you have. Are the resume and application consistent with each other and with information gained during background checks, reference checks, and interviews?

If you have trouble getting former employers to open up, follow these tips:•

•Have the employee sign a waiver. Fax the waiver to the person you need to talk to.
•Enlist the candidate's help. Have the candidate call the person and request that he or she speak to you.
•Play hardball. Tell the person that you won't be able to consider the applicant unless you can get a reference.
•Quote job reference immunity laws. Over half the states have laws protecting employers from liability for statements made in job references, as long as the information is true, provided in good faith, and devoid of malice.

Those statutes are designed to encourage employers to share useful information with one another, rather than giving only names, positions, and salary levels. If your state has such a law, let applicants' former employers know about it when you interview them.

Can You Avoid All Troublemakers?

Probably not. But even if a few slip through, it's worth the effort if you keep some out of your organization. At the very least, you'll establish your good-faith effort to screen candidates.

You do not want to be on the witness stand explaining how you never quite got around to doing the reference checks on one of your new employees who just committed a violent act—one that he or she had committed before at a former place of employment.

You Never Know

One attorney tells of a client who was being sued by an employee the client had just fired. Although the termination was for poor performance, the former employee claimed that he was fired because he had reported regulatory violations to the authorities (which he had).

In preparing for the case, the attorney contacted five former employers. All five had been victims of the same scenario—the person would, in each case, get hired, perform poorly, make a complaint, get fired, and then sue!

Obviously, not one of these employers had bothered with reference checks on this employee.

Troublemakers' FavoriteTarget—FMLA

If you do hire a troublemaker, one area where you're almost sure to have problems is Family and Medical Leave. Slackers love open-ended intermittent leave—their ticket to get off work whenever they want to—unless you've established iron-clad policies and procedures.

It's an almost overwhelming task to keep up with the FMLA, and the recent, far-reaching changes haven't helped. And that's to say nothing of the devilish complexity of marrying FMLA with ADA and workers' comp.

Summarized from Today's HR Daily Advisor Tip:

The Whitford Group can assist you in developing a comprehensive hiring process and train your supervisors and managers in effective techniques to help them hire the best employees first.
TheWhitfordGroup@aol.com
704 298-2115