"Violence in the Workplace" is the buzzword of businesses today. Homicide is the second leading cause of death in the workplace for men, and the leading cause of death in the workplace for women. The problem is that death is just the tip of the iceberg. Thousands of reported and unreported injuries and threats due to violence occur weekly. We read about over 1,000 workplace murders annually; but, what we don't read about is that over 160,000 workers are physically assaulted annually.

In 1995, according to the Justice Department, 11% of all violent crimes in the United States occur in the workplace. The growing number of violent incidents in the workplace has employers on edge. Employers are now being held liable for the violent actions of their employees.

Temporary agencies are not immune. If your agency hasn't had the "employee from hell", then just wait. After a three month study with

temporary agency was 70% higher than the "hits" recorded among those applicants who applied directly at the same company!

Forgery, Theft, Battery, Prostitution... These are just a few of the criminal convictions identified by InfoLink Screening Services, Inc., a consumer reporting agency who performs criminal background searches for many California temporary employment agencies. Are your clients asking you to provide pre-employment background screening? If not now...they will! "The trend we are seeing is a dramatic increase to conduct pre-employment background checks as a standard operating procedure", says Kathy Hoenisch, Director of Operations Services at Thomas Staffing. Even if your clients don't require screening, employment agencies must consider changing their practices to automatically include this service.

Under "negligent hiring" a company could be held liable for the actions of their employees. If an employee of a temporary agency commits a crime against the public or another employee; and, had been previously convicted of an act of violence, courts have held that the employer "should have known" and thereby held the employer liable. Not only would the agency be involved in a lawsuit; but, so would their client. This not only means attorney fees, but also the loss of the client, and a tainted reputation. Judgments range from $100,000 into the millions of dollars. Even if you win, attorney's could cost your company $25,000 to $100,000.

I find that many companies neglect the one simple program that will reduce crime...hiring the right employee. "Since we're dealing with companies finances, working with InfoLink gives us peace of mind knowing that we reduce our potential liability and our clients view us in a more professional light", says Kendra Lohr, Division Director of Accountemps.

After performing thousands of pre-employment criminal background searches for companies nationwide, we have found that just doing a background search by itself is not the only answer. The background search must properly coordinate with the complete human resource functions of hiring; starting with the company's employment application.

What can you do as the employer? Listed below is a simple 4-step solution to mitigate the potential of hiring the "Employee from Hell".

1. Don't hire in haste: Just because you have an open position, you must think of the consequences of a bad hire.

2. Have a well thought-out employment application and interview process: Today, it is difficult to obtain the job of choice. Therefore, many applicants tend to stretch the truth. Surveys indicate that over 35% of applications are falsified. Therefore, ask all the questions you are allowed. Falsification of an application is legitimate grounds to refuse employment. Also, it is far easier to terminate an employee whom you later found falsified your application, than for any other reason.

3. Take a deep breath, and perform a thorough pre-employment background check with a competent consumer reporting agency before making an offer of employment: Strategically and prominently placed statements of your companies background check (and drug testing) policies should be the first item an applicant sees in the employment office and on the application. This alone is a great deterrent. Emphasize to your applicants that they are going to be checked. Don't bury statements in small print on the back page.

4. Strongly consider drug screening applicants: Statistics have proven that companies who drug test have substantially reduced losses due to theft and absenteeism.

More often than not, making an offer of employment finally rests on a value judgment. By carefully scrutinizing your employment application you can reduce this risk. Are you asking all the questions you are allowed to ask? Falsification of your application is grounds to deny employment. On October 11, 1995, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidelines for pre-employment inquiries under the Americans with Disabilities Act. On the Federal level, we have the Fair Credit Reporting Act, which encompasses more than just credit. Additionally, California has two state laws along with the California Labor Code and the California Department of Fair Employment and Housing Act. When was the last time you reviewed these laws?

It is common for offenders to be arrested on a felony charge that is later reduced or plea bargained to a misdemeanor or infraction, in exchange for a guilty plea. There is nothing in California law that prohibits a company from asking if an applicant has been convicted of a misdemeanor. Failure to ask about all convictions (felonies and misdemeanors) could give a less than accurate picture of the applicant.

In addition, in California there are 140 different crimes that may be considered "wobblers" because they wobble between felonies and misdemeanors. In California, if the crime is a wobbler, the district attorney can decide whether to charge the person with a felony or a misdemeanor. And, the judge can change the conviction to a misdemeanor by imposing a sentence where time served is less than one year and no time is served in state court. Here are some examples of wobblers:

Some companies applications ask: "Have you ever been convicted of a felony in the last 7 years?" In providing clients with criminal background checks, the California Investigative Consumer Agencies Reporting Act specifically allows us to give criminal history beyond seven years if the applicant is earning or expected to earn over $30,000 yearly. So why limit your search!

Other applications ask, "Have you ever been convicted of a felony or misdemeanor that resulted in imprisonment?" Recently I noticed we reported the following convictions:

Why would a company only want to know about crimes where the person was in prison? In the above circumstance, the applicant could have honestly checked "no" to the question

Finally, most employers know that they can only seek convictions; however, in California, you can be advised of charges on an unresolved arrest pending trial. When asking about convictions, companies should ask about both felony and misdemeanor convictions and also about arrests pending trial where the individual may be out on their own recognizance. You can not ask about: (1)marijuana related misdemeanor convictions occurring more than two years prior, (2) convictions for which the criminal record had been expunged, sealed or eradicated by the court; or (3) misdemeanors where the case was dismissed after probation. In health care you can ask about arrests for drug or sex related crimes under certain circumstances.

Today, failure-to-hire claims make up 10 percent of all ADA-related cases at the EEOC. To aid employers, the agency has issued revised interviewing guidelines (pre-offer and post-offer). The EEOC guidelines offer an additional list of pre-offer questions employers can ask. For example:

A DUI showing on an applicant's MVR search when the company never inquired as to their driving record, may cause the recruiter to think twice. However, by receiving a "no" answer on an application which specifically asked if the applicant had a DUI, and learning through a search that the applicant, in fact, had a DUI, would provide justification for the recruiter to deny employment without risk of retaliation.

Prior to requesting a background search from an outside agency, you must notify the applicant. Clients ask me if the wording on the back of their application is sufficient notification. If you as the company go to the courts, request the MVR, Credit, References, and other verifications; in most cases the wording on your application will suffice. However, when using an outside agency, chances are your application will violate either Federal and/or State law. Not only must you adhere to legal requirements in this notification; but, we suggest the form should be ominous and act as a deterrent.

The Fair Credit Reporting Act specifically says: "A person may not procure or cause to be prepared an investigative consumer report on any consumer unless (1) it is clearly and accurately disclosed to the consumer that an investigative consumer report including information as to his character, general reputation, personal characteristics and mode of living, whichever are applicable, may be made, and such disclosure (A) is made in a writing mailed, or otherwise delivered, to the consumer, not later than three days after the date on which the report was first requested, and (B) includes a statement informing the consumer of his right to request the additional disclosures provided for under subsection (b) of this section".

State laws may be different. In California you have two laws which address notification. The Investigative Consumer Reporting Agencies Act §1786.16(a)(2) mirrors the FCRA except; in addition, it requires that the notification include the name of the consumer reporting agency conducting the investigation.

In § 1785.20.5 of the California Consumer Credit Reporting Agencies Act it states: "(a) Prior to requesting a consumer credit report for employment purposes, the user of the report shall provide written notice to the person involved. The notice shall inform the person that a report will be used and the source of the report, and shall contain a box that the person may check off to receive a copy of the credit report. If the consumer indicates that he or she wishes to receive a copy of the report, the user shall request that a copy be provided to the person when the user requests its copy from the credit reporting agency. The report to the user and to the subject person shall be provided contemporaneously and at no charge to the subject person".

In California, you must notify all applicants; however there are three exceptions to notification for background checks on a current employee. These are for (1) promotion, (2) reassignment, or (3)(a) to "determine whether or not an employee is to be retained; and, (b) to determine whether or not such employee is engaged in any criminal activity likely to result in a loss to the employer". Under these circumstances you would not have to notify the employee. Additionally, signature on the notification is recommended; however it is not required under the law.

InfoLink provides its clients a Notification and Release Authorization to use that conforms with all the laws in the area. Most of our clients place it on top of their application to act as a deterrent. Our clients tell us that not only have background checks reduced turnover and theft; they have saved the human resource department time and money reviewing applications of those who wouldn't pass as they many times see the notices and walk out.

Armed with a complete application, a temporary agency can get more from the background check. Once again, if it is found that the applicant falsified their application...you have an easy out.

When selecting a company who does background investigations, look carefully. Make sure they understand and conform with both federal and California state law.

Your search firm must be one who actually obtains criminal information directly from the courts. On-line services, the Internet, CD Roms, or other electronic type services provide hearing dates and case numbers. These companies are not primary source informants and the information supplied does not document convictions. They do not tell you whether a case has been expunged or dismissed.

In addition, in order to get the data into the computer, the information is entered by individuals. This creates considerable room for mistakes. In several instances, a search at the court, found there was no date of birth match on the same individual who was reported to have a case number by an on-line service. Due to "disparate treatment" (differential treatment of employees or applicants on the basis of their race, color, religion, sex, national origin, handicap, etc.), according to the EEOC and many states including California, even the mere inquiry of this information may be unlawful. Therefore it is reasonable to assume that these forms of searches, at the employment stage, may open the door to a lawsuit if a company acts on these records alone to deny employment.

Recently the president of a large temporary agency who uses our firm exclusively, told me that one of his clients was requiring background checks. The client insisted that the agency use the background search company they were presently using. Within the first 30 days he found that the company was not supplying current information and had missed a serious criminal conviction that had occurred within the last six months. It seems the other company was using a CDRom. CDRom information is dated; and once again, information on a CDRom is a hearing date only and not a bonafide conviction; and, be aware that many municipal courts (especially Los Angeles) refuse to work with any company interested in placing their records on a CDRom.

What should you seek in a background check?

What else should you search? We recommend a social security verification trace on each applicant. Not only will this search confirm that the applicant is who they say they are; but, it will provide past addresses which are helpful in identifying other counties to search. In addition, the social security verification can help identify other names the applicant has used in the past. Many time we will find a conviction under an AKA. Occasionally, this search will reveal past employer information which is helpful to compare to the employment application

As searching all counties in a particular state may be cost prohibitive, we also recommend a motor vehicle report. Even if they don't drive for your company, learning if the applicant has been convicted for possession of drugs, had DUI's or DWI's, had a failure to appear, or currently has a bench warrant out for their arrest is most advantageous. If they do any driving for you, knowledge of traffic accidents or a high ticket count is critical.

For applicants who will be handling money, strongly consider obtaining a credit report that is designed for employment purposes. Seeing if a person has had a recent bankruptcy, lien, judgment, or simply bad credit with items going for collection would be most helpful if you are interested in preventing theft. Your applicant may be honest; however, anyone could be tempted if they are in financial difficulty.

Obtaining the position desired is often difficult. By checking education - dates and degrees, we catch many applicants who stretch the truth. Untruthfulness in any one area is a clue to potential problems.

In many states, companies can obtain workers' compensation files. These are available on a "post job offer basis" only. Naturally this information is important should you need to make reasonable accommodations for an employee with a disability; however, an important use of this search is to validate the integrity of the applicant on the related job application. We have found that applicants sometimes "forget" to include a past employer on the application where they have filed a previous workers' comp. claim. It seems to us, that if it was a legitimate claim, there is nothing to hide. Not divulging past employers indicates potential that they may be one of those individuals who go from company to company making claims. When requesting this search ask your consumer reporting agency if they can report to you only past employers and not expose you to the knowledge that a claim was ever made. There is reason to be concerned about having knowledge of workers' comp. claims as you can not deny employment due to a claim by itself and knowledge may invite a lawsuit. What is critical is comparing the past employers to what the applicant revealed on the application.

What is your present practice on past employer reference checking? Some companies "give up" as they find that employers today just don't provide any meaningful information. Beware; plaintiffs have received judgments under negligent hiring where companies did not call past employers.

On your application, consider not only asking applicants to identify a minimum of four past employers; but, to list supervisors and phone numbers. Also, have applicants list a minimum of five business references with phone numbers. Many times more information can be obtained from business references.

So what do you do? Our recommendation is as follows:

1. Wherever possible, have the same person in your company make the calls. The more experienced they get, the better information they receive.

2. Train your personnel to listen. It is not only what they say...it's how they say it.

3. Always have handy a specific release form to fax the past employer. This form should be very specific and authorize the past employer to give you information; not just allow you to ask for it. We provide our clients a statement which is very strong and very broad, and releases any informant from any liability resulting from furnishing the information.

4. If you still have difficulty getting information, hire a consumer reporting agency to provide that service. We sometimes send a copy of §1681h of the Fair Credit Reporting Act. Although each state may have separate laws regarding this subject, the Federal law states the following:

5. What questions should you ask when calling? We recommend the following:

• Confirm dates of employment, job (position) held

• Inquire if they were terminated or left the company voluntarily

• Ask whether the employee would be rehired

• Ask if they had any particular expertise, job skills or abilities

• Ask any other pertinent questions that relate to the job:

How would you describe the candidate professionally and personally?

How does xxx interact with subordinates, peers, managers? Ask for examples.

How would you describe the candidate's management style?

How does xxx interact with other employees, vendors, customers. If so, how would you evaluate their performance?

Describe the candidate's job skills and abilities.

Do you recall anything outstanding the candidate did while at the company?

In your opinion, what are the candidate's strengths?

How does the candidate react to criticism or constructive feedback?

How do they perform under extreme pressure?

Drug testing decreases drug related employee turnover and theft by helping keep drug abusers out of the workplace. Drug testing is being used by thousands of companies to monitor criminal offenders. The constitutional battle over drug testing has decided in favor of pre-employment drug tests, since no one is compelled to seek a job and an applicant has the ability to walk away from the application process free of coercion.

The U.S. Post Office and the Navy have done studies of pre-employment drug testing as a predictor of future job performance. The study showed that employees who tested positive for any drug were almost twice as likely to be absent from work than those that tested negative. These tests are very important in the temporary industry where attendance is vital.

The only vulnerable aspects of any drug test are (1) the cost of sending all tests through a laboratory for GC/MS testing, (2) the time involved in waiting for results; and (3) the chain of custody of the specimen. Today, there is a new non-instrument on-site drug test that provides rapid documentable results using simple procedures. These tests do not require urine handling and the sending of specimens to a laboratory except for confirming only those tests that are positive. Thus companies can test on-site eliminating uncertainty while substantially reducing the administration burden and costs posed by sending all samples to a laboratory.

The trend today is to provide background checks. "I am finding that in today's market, we are getting more and more requests for background checks, especially on our temp to hire positions", says Suzanne Cain, Branch Manager for Act I Personnel Services. "Certain industries view background checks as an absolute necessity, the most significant variable", as noted by Kathy Hoenisch at Thomas Staffing, "is not whether checks are a requirement; but, what do they want included in the check".

Companies who have initiated background screening and coordinated this with the complete hiring process have enjoyed excellent results. "Providing pre-employment screening has been very helpful in our competitive industry", says Lori Horton-Guarini of Finance Diversified Personnel, "A very large client of ours has made background checks mandatory for any temp. working for more than one week. They can convert the employee to full time and know the background check has been done. It has been an excellent sales tool."

Because the law is continually changing, it is critical to consult a labor attorney regarding federal and state laws before changing your company's job application and employment procedures. The things you must do today, exceed the things you have ever had to do in the past. Remember, one can be lucky for only so long.