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Tuesday, 13 April 2010 00:00

Troubled Employees Are Trouble for Employers

If you are an employer, it is likely you have only one or two chances to avoid the problems, and potential liability, that comes with a bad employee.  You can minimize the risks by taking a few specific and appropriate actions.

Prior to Hiring

Wisconsin recognizes the tort of “negligent hiring.”  In Miller v. Wal-Mart, the Wisconsin Supreme Court determined that an employer could be liable for the negligent supervision, hiring and training of an employee.  If your employee harms another employee or a third party at work and you, as the employer, knew or should have known of the employee’s dangerous tendencies, you could be liable.  Consequently, the hiring decision is the most important decision that is made.  And, it is the first and best opportunity to minimize or eliminate risk.

As an employer, you should have in place hiring practices and policies that will assist you to identify and “screen out” potentially dangerous employees, and that will provide a sound basis on which to defend a decision to hire or not to hire.  These practices and policies should include:

  • Develop a Comprehensive Employment Application Form.  You will need a form that is well thought out, solicits the information you need, and complies with the law.
  • Regularly Train Interviewers.  Every HR person involved in the interview or hiring process should regularly be trained to identify potential issues and ferret out necessary background information.
  • Check References Thoroughly and Carefully. The more substantive information you can obtain, the clearer the picture will be.  Telephone reference checks, as opposed to relying on supplied reference letters, can provide detailed and nuanced information.
  • Look Further into an Applicant’s Background.  It is important to spend the time as appropriate for the position.  Criminal conviction checks and credit checks should be a routine part of the process when hiring for positions involving trust and confidence and the handling of money.  Motor vehicle records and other public records may also provide useful information.
  • Trust Your Instincts.  Good HR recruiters often have a “sixth sense” about applicants.  They can pick up on unexplained gaps in employment history, or why an applicant suddenly switched jobs without good reason, and can ask appropriate questions of an applicant who appears openly critical of or hostile to former employers or former fellow employees.
  • Don’t Allow Time Pressures or Demands of the Job to Color the Decision.  Often, HR personnel are working under tight time deadlines or urgent demands to “get some bodies now” hired into the workplace. 

When the pressure is the greatest, that is when the most time should be taken to ensure the processes and the decisions are sound.  In the rush to meet hiring goals and time schedules, there can be a tendency to cut corners or take short cuts.  Avoid this.

  • Document Your Decision.  Make a record of the process that you followed, the steps that you took, and the information that you obtained.  This record will serve as good evidence of the care and diligence that was taken at the time of the hiring decision.

After Hire

After hire, the employer’s potential liability does not end.  Employers have a continuing duty to be aware of and, in appropriate circumstances, take immediate steps to prevent harm to employees and to third parties.  Incidents involving a troubled employee abusing, harming, making threats, or “acting strangely” must be taken seriously and acted on promptly.  Always document any alleged incident and follow to the letter any progressive discipline process or policy in place.  Encourage employees if they are a victim of, or witness to, such conduct to come forward immediately.

The Hobson’s Choice

When confronting a dangerous employee, employers are often faced with the Hobson’s Choice of taking swift action, which often includes summarily dismissing the employee, or leaving the employee in place, and thereby creating potential liability for the employer if there is another incident perpetrated by the employee in the workplace.

Moreover, termination of the employee does not necessarily solve the problem.  A significant number of workplace violence incidents occur during or soon after such a termination.  Often these troubled employees do not just go away, they go away mad – and then they return with a weapon.

Intervention

Forward thinking employers have adopted the concept of “Intervention.”  The concept is premised on the creditable goals that a troubled employee who has broken the rules should not be allowed to stay in the workplace, but also should not be summarily fired.  Instead, an Intervention Team, at the first sign of an employee’s dangerous tendencies, should immediately be activated.  The Intervention Team is an inter-disciplinary team (HR, legal advisor, management, and a psychiatrist or psychologist) focused on (1) mitigating or removing the threat to other employees or third parties in the workplace and (2) obtaining the help and resources the troubled employee needs.

Steps in the process include identifying and evaluating the incident and the employee, placing the employee on a paid or unpaid leave, and developing a plan to provide the counseling and medical resources necessary to assist the employee.  The end result is that the employee may still go away, but that he or she will receive

the necessary assistance.  This approach may cost the employer more in time and money at the outset, but the value of intervening and preventing a violent incident in the workplace far outweighs the cost.  It can be money well spent.

Conclusion

Employees often have problems; troubled employees can have significant problems. Employers have a chance at both the hiring stage, and at an intervention stage, to take the appropriate actions and make the right decisions to reduce or eliminate risk to the employer and other employees or third parties.  Our lawyers are experienced with employment law matters and can ably assist you with your employment law-related questions.

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