"Ban the Box" Laws

Some employment applications have that pesky little box that screams "check me if you have a criminal conviction!"   Research has found that this one little question may automatically and unfairly eliminate some applicants from the hiring process.

When the box is checked, applicants are often immediately rejected for a prior offense that may have no bearing on the job or is so old that it's not relevant.  If the applicant doesn't check it and the employer runs a background check, he or she may be disqualified because they lied on the application.  The applicant is between a rock and a hard place.

While some Ban the Box laws apply only to public employers, it is quickly expanding to private businesses.  Six states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey and Rhode Island) have passed laws that require private employers to remove any conviction-related question from job applications.   While each Ban the Box law is different, they all address when the criminal history question may be asked, what types of convictions can be asked about, how far back an inquiry may extend and what, if any, exceptions apply. 

In 2012, the EEOC recommended - as a best practice for all employers - removing criminal history questions from job applications, reserving such questions until later in the hiring process (such as after an in-person interview or after a contingent offer).  The EEOC guidance requires the employer to demonstrate that the criminal records restrictions are directly related to the job and that the applicants are individually assessed for the position.

Whether such a proposal becomes a law in Texas remains to be seen.  In the interim, follow EEOC guidelines with respect to your hiring process.   As an employer, we need to remember that these convictions or arrests may not accurately represent who the applicant is today.

Workplace Violence

"Workplace violence is now recognized as a specific category of violent crime. . . "  FBI, Workplace Violence, Issues in Response.

 

It is believed that 2 million American workers are victims of workplace violence each year.  2012 statistics reflect that nearly 1 out of 5 occupational fatalities is attributed to workplace violence.  In 2011, 780 fatalities (attributed to violence) occured with men making up the majority of fatal workplace injuries.   Media coverage has a tendancy to create an impression that workplace violence is more widespread than it is.  While incidents of workplace violence are serious, the rates of workplace violence have dropped sharply since the mid-90s.

 

Whether harassment or intimidation, the threat of physical violence or other threatening behavior, the prevention of workplace violence is a major concern for employers and employees.  Employers should train managers and supervisors to recognize the warning signs of potential workplace violence. 

 

Here's a couple of basic steps you can take:

1. Communicate, Communicate, Communicate.  Ensure that the employee has an outlet for frustration.  Allow the employee to vent.  If your organization offers an Employee Assistance Program, ensure employees are aware of it and can use it as needed.
2. Assess your business climate.  Be aware of what's going on in your workplace. Pay attention to unusual changes in employee behavior. Has there been any recent events which could increase the sensitivity of an employee?   (Devil's Advocate here.  A couple of questions.  Do you know the spouse's names of your employees?  How many children they have, their names?  Are they going through a divorce or other life trauma?  If you can't answer these questions, you don't know your employees.  If you don't know your employees, how can you tell if there is something wrong?)
3. Prevention.  Employees spend the majority of their lives in the workplace.  Disagreements are always going to happen, how you handle those disagreements is key.  Potential aggressors can be identified - just look for the warning signs. Warning signs can include strange behavior such as the employee becoming reclusive, erratic behavior, deteriorating appearance.  Other observable warning signs can be emotional problems and/or performance problems.

The 2012 documentary, Murder by Proxy: How America Went Postal, is framed around the USPS shootings that took place in the 80s and 90s. I found the documentary interesting as a provided the perspective of a postal carrier who survived a shooting in 1991 (Royal Oak, Michigan) and his ongoing efforts to urge lawmakers to pass legislation designed to curb workplace employee "abuse."  Not just a film about mass murders, the documentary addresses some of the underlying issues within the workforce that drove individuals to begin killing at random.   

 

In the closing minutes of the documentary, possibilities other than mass workplace shootings are considered.   James Alan Fox, Ph.D., Lipman Professor of Criminal Justice at Northeastern University, states; "Sabotage could be even more deadly and a greater risk to safety than bringing a gun to work." "It could be poisoning products, creating environmental contaminants. . . "  (September 1982 seven people in the Chicago area were killed by Tylenol capsules laced with potassium cyanide.  I don't believe this case was ever solved, so I can proffer the scenario that this could have been the work of a disgruntled employee. )

 

The bottom line? Workplace violence needs to be proactively dealt with.   We can't completely eliminate it, but we can mitigate risk for violence by educating and training our managers, supervisors and employees.

Going Postal - Violence In The Workplace

The 1986 killings by a part-time letter carrier, and his subsequent suicide, was not the first episode of its kind.  From 1983 forward, the United States has become chillingly aware that a trend had been developing with postal workers committing acts of violence against co-workers.   These events raised awareness of workplace violence. The term “going postal” became American English Slang for an individual becoming uncontrollably angry, and often committing violent acts in a workplace environment. 

I’m not going to address whether or not U.S. Postal Service workers are more likely to “go postal” than other employees.  I just want to address workplace violence. 

In 2003, The Federal Bureau of Investigation, National Center for the Analysis of Violent Crime issued a paper titled Workplace Violence, Issues in Response, which stated; “Mass murder on the job by disgruntled employees are media-intensive events.  However, these mass murders, while serious, are relatively infrequent events.  It is the threats, harassment, bullying, domestic violence, stalking, emotional abuse, intimidation, and other forms of behavior and physical violence that, if left unchecked, may result in more serious violent behavior.  These are the behaviors that supervisors and managers have to deal with every day.”

The OSH Act of 1970 General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”.  Citations can occur if an employer doesn’t take reasonable steps to prevent or abate a recognized violence hazard in the workplace.  While there are industries considered particularly vulnerable to workplace violence, all companies should take steps to implement effective safety measures to reduce the threat of workplace violence.  In 2011 the U.S. Department of Labor’s Occupational Safety and Health Administration released a new directive on workplace violence. 

According to the Bureau of Labor Statistics, nearly 600 people a year are victims of workplace homicide.  As recent as 2009, homicide was the number one cause of death for a woman on the job.   In 2010, workplace violence accounted for 18% of all work related fatal occupational injuries (assaults and suicides). 

Warning signs that an employee may be contemplating violence include a confrontational attitude, threatening co-workers, clients, customers, or boss, bragging about guns, and/or aggressive behavior.  Take steps to protect your employees: 

• Be aware of the warning signs. 
• Understand your policy. 
• Report to HR and upper management so that the organization can take action to protect its employees.

Workplace violence can affect employees, visitors, customers, and clients, even at times, employee families. Prevention programs that do not consider harassment in all forms and threats are likely to be ineffective. As an employer, we have a legal and ethical obligation to provide employees with an environment free from threats, harassment or violence.

Felony Convictions and the Hiring Process

I had a question posed to me today; ". . is there a problem with stating because of the felony we can not hire them?" In this situation the manager terminated the interview immediately upon learning that the candidate had a criminal history.

What, as an employer, should your practice be? You can refuse to hire such an individual provided you comply with EEOC guidelines regarding consideration of those convictions. The EEOC requires employers to consider three factors:

1. The nature and seriousness of the crime.
2. How long has it been since the conviction?
3. What is the type of job at stake?

Employers should consider the following as a practice: "Affirmative findings will not automatically disqualify an applicant from employment, unless the prior conviction bears some reasonable relationship to the nature of the employment. Conviction records could be cause for rejection if their number, nature, and proximity would cause the applicant to be unsuitable for the position."

The TWC provides some excellent advice for the employers; "EEOC Issues with Background Checks: Basically, EEOC takes the position that because statistical evidence shows that a higher percentage of minorities than non-minorities has had financial or criminal history problems in the past, taking an adverse job action based upon such factors has an disproportionate and unfair impact (in EEOC terms, "disparate impact") upon minorities, and the burden will be on the employer to show a legitimate, job-related reason for taking the adverse job action.

EEOC expects employers, prior to turning someone down for a job or promotion who has had an unfavorable credit or criminal history report, to do an individualized job-relatedness determination. That means that before turning down someone for a job on the basis of a credit report or criminal history problem, the employer must be able to show that it considered the specific problem and determined that it would not be a good idea or prudent course of action to hire that specific person for a particular position."

In closing, ensure that your hiring practices are EEOC compliant!