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Screening Employees

No background-screening system is infallible, as can be seen in the case of Bruce Ivins, the government researcher who committed suicide after being accused of the anthrax mailings in 2001 that killed five people. But the use of such tools is growing -- with more and more employers instituting such checks on current employees.

Tuesday, August 19, 2008
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When the powerful U.S. government has a tough time determining if one of its employees -- an employee in a highly sensitive area -- is mentally unstable and potentially dangerous to others, what kind of outcome can private employers expect?

Experts say the use of screening tools to reduce the risks associated with hiring or retaining a person who may turn to violence can be effective and worth the cost, but no system is infallible.

And, of course, it's important to make sure the company follows privacy and employment laws when instituting screening policies.

In the government's case, Bruce Ivins, who recently committed suicide after being named the likely suspect for the notorious anthrax killings in 2001, is now being described as "deeply disturbed" by the government itself. And the media is reporting that the potential litigation arising from the situation could run into "tens of millions of dollars," according a report in USA Today.

"One of the best predictors of how a person will act in the future is his or her past actions," says Pamela Devata, a senior associate in the Labor and Employment Practice Group of Seyfarth Shaw LLP, the Chicago-based law firm. "This is why running periodic background checks and screenings on employees or potential employees is imperative.

"[Running background checks] not only mitigates risk to the employer but more importantly, it increases the safety of the person's co-workers," she says.

Traditionally, employers have used background screening for job applicants, but there is an emerging trend for the use of such tools for current employees, says Nick Fishman, chief marketing officer and executive vice president of Cleveland-based employeescreenIQ.

"We are seeing it grow tremendously," he says, noting that a pre-hire screening "is only as good as the day you run it because the next day something could happen ... ."

Screening current employees is "an emerging trend," he says. "It's growing in its importance. It's growing in its use and there are a lot of tools out there for employers to get that kind of information."

There are some limitations, however, says Myra Creighton, a labor and employment attorney with Fisher & Phillips LLP, in Atlanta, who specializes in health-related issues in the workplace, including mental health.

Creighton says that, in the Ivins case, the government was subject to the Rehabilitation Act, which essentially imposes the same standards as the Americans with Disabilities Act.

"Once an individual is hired, all medical examinations must be job related and consistent with business necessity," she says. "Thus, the government could not require employees to submit to yearly medical examinations just to make sure the employee had not developed a mental impairment."  

Creighton adds that the government, however, can require an employee to submit to such an examination/inquiry if there is an objective basis for believing the employee is a direct threat (e.g., threatening or intimidating behavior toward co-workers); if there is a question concerning the employee's ability to do his job; or if the person requests a medical accommodation.

Robert Hogan, president of Hogan Assessments, a screening-assessment company based in Tulsa, Okla., says testing is a good idea -- if you use the right test. For psychological testing, most employers, including the federal government, use the Minnesota Multiphasic Personality Inventory, but Hogan says the MMPI is ill-designed for such use.

"The MMPI was created to help psychiatrists in making diagnoses," Hogan says. "But because of the MMPI's popularity over the years, every police and fire department, even the FBI, screen everyone with it. It's a waste of time."

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A better solution, Hogan says, are tests that work at rooting out personality disorders

"A test like that would have predicted that [an individual] was coming unhinged," Hogan says. "Of course, tests can work, but you have to use the right ones."

Seyfarth Shaw's Devata says the issue comes down to what checks to run, what sources to use, where to get the information and how often to conduct checks on employees, adding that these questions may not be the same for every employer, or even every position.

"In the wake of these considerations, there are also myriad state laws (in addition to the [federal] Fair Credit Reporting Act and Driver's Privacy Protection Act) that employers and background-screening companies must travel through," she says.

Devata counsels both background-screening companies and employers to balance the need for appropriate checks with employee privacy concerns, noting that pre-hire screening -- mainly to prevent a negligent hiring claim and to maintain a safe workplace -- is almost universal.

Basically, she says, if you comply with federal and state guidelines, screening is a good thing, though there may be differing opinions on who to screen and how often.

"At the end of the day, it's how a third-party vendor does it and that it is within the law," she says, adding that this aspect can be confusing, because there are both federal and state laws on the issue, and they are not always the same.

Cost-wise, Devata says, screening both job candidates and current employees typically is worth it. But some employers, with the economy in the doldrums, now see background screening as a luxury.

"I see it as a necessity," she says.

Another option, she says, is to have a clear policy in place regarding a code of conduct. For example, an employer can have the policy that when an employee is convicted of a crime, they would be obligated to provide that information.

"It's hard to enforce, but you can have it in place," Devata says. "There is nothing discriminatory about it."

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