How to Avoid Hiring a Violent Employee Without Getting Sued
Every business wants to avoid hiring an employee who may become violent. In fact, employers have a legal obligation to do so. The Occupational Safety and Health Act requires that every workplace must be free of identifiable hazards that can cause physical or psychological harm. The Occupational Safety and Health Administration, which enforces the Act, takes the position that fellow employees can be a hazard.
Quite apart from its legal consequences, hiring a violent employee can be quite costly in terms of property damage, injuries to co-workers, lost productivity, legal and insurance costs, and reputational damage.
Who is a violent employee
A savvy employer seeks to avoid hiring not only the employee who will take out a gun and shoot someone, but also employees who exhibit an entire range of other violent behaviors. These behaviors include threatening other employees, customers or management, and engaging in sabotage of physical facilities or computer systems. Also included are employees with anger management issues, as well as other employees who are just so weird that they make everyone in the workplace extremely uncomfortable.
Why is avoiding violent employees so difficult
Although everyone would agree on the goal, there is no easy formula for identifying a potentially violent employee. In fact two types of laws can make it difficult to avoid hiring violent employees.
In the past, many employers simply declined to hire anyone with a history or any evidence of mental illness. The belief was that people with mental illnesses were prone to violence. This belief has proven false. The vast majority of people with psychological or emotional problems function well in the workplace. What’s more, the Americans with Disabilities Act (ADA) and similar state laws prohibit an employer from refusing to hire someone just because he now has or has had a mental illness.
Similarly, an arrest record was once thought to be another marker for a “trouble maker.” An arrest, however, is not the same as a criminal conviction. While an employer can legally exclude someone with a criminal conviction, most states now prohibit employers from eliminating applicants solely on the basis of arrest records.
What can an employer do that is legal and effective
There are several strategies that an employer can use. The first is to understand exactly what the ADA does and does not allow. Specifically, the ADA permits employers to refuse to hire applicants who present a direct threat to others in the workplace. Under the ADA, a direct threat means that hiring an individual will result in a high probability of “substantial harm.”
In other words, the employer is not rejecting an applicant solely on the basis of a history of mental illness, but for specific behaviors that are likely to be repeated with disastrous consequences.
There are certain behaviors that do not bode well for a productive, nonviolent working relationship. These include: attendance problems or an erratic work history with no rational explanation; poor job performance that goes well beyond the normal lack of skills; a rigid, inflexible or dictatorial personality; problems with authority; and fascination with weapons. These behaviors are not predictive in and of themselves, but in the context of an entire work history and personal profile, they can be problematic.
Three lines of inquiry that may reveal whether an employee is prone to violent behavior
These three lines of inquiry are the interview, the background investigation, and references. Each of these lines should be pursued not only with an eye to excluding problematic applications, but also to identify the most skilled applicants. Ideally, more than one person should review each of these sources of information.
No applicant should be hired without a personal interview. In addition to the usual questions about skills and experience, the applicant should be asked a range of questions about how he reacts to different situations. How did you get along with your last boss and co-workers? How did you handle disagreements? Did you have to work with people who were incompetent? If so, how did you manage to get the job done? How do you handle stress? What is your style in terms of getting work done? Can you recall a situation when you were extremely angry with someone at work? If so, how did you deal with that emotionally? How would your co-workers describe you?
I strongly suggest a formal background investigation to verify education and work qualifications, and to document criminal conviction history and credit. Clearly, applicants with convictions for serious violent crimes are not good risks unless the crimes were committed many years ago, were isolated events, and have been superseded with strong work histories. A history of bad debt and charge offs can reveal a lack of responsibility or dishonesty unless there are legitimate reasons such as illness, unemployment or divorce.
It is nearly useless to ask applicants for names of references. Almost everyone has a friend who will say nice things about him. It is more effective to talk to people who worked at the applicant’s prior company but have not been named as references. That way, you are much more likely to get candid information. Also you may be able to get around the widely prevalent rule that managers are not supposed to give out information about prior employees.
In asking for a reference, it is good to follow the same line of thought as the interview. Ask the reference about the applicant’s behavior in difficult situations, as well as his ability to get along in the workplace.
There is no single indicator or marker of a violent job applicant. However, if you get enough information directly from the applicant and from other sources, you should be able to form a legally sufficient basis for deciding whether the applicant is a risk. Evaluating job applicants for violent tendencies is not a perfect science, and it is time consuming. Still, at the end of the day, if you can avoid hiring even one problematic employee, it is well worth the effort.
About the Author: Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC (http://hirefireandretire.com). Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace, is a basic primer on HR law and personnel policies.