Every employer assumes a large invisible burden when hiring workers. That burden is the obligation—the duty—to exercise reasonable care for the safety of others. The legal description of the duty of care is called due diligence. The employer’s duty to exercise due diligence means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job. The duty also extends to supervision, training, and retention once hired. Sadly, there are many employers who either do nothing or very little about due diligence during the hiring process.
Employers of all sizes know that just one bad hire can create a legal and financial nightmare. Employers need to take reasonable efforts to avoid allowing a bad hire—someone who is too unfit, dishonest, unqualified, disruptive, or dangerous for the job—from even entering the workforce in the first place. If a bad hire manages to get through the front door in the first place, employers can be held liable for negligent supervision or negligent retention.
Although everyone agrees that safe hiring and due diligence are missions critical for any business, there are numerous challenges facing employers who wish to establish safe hiring practices in their workplace. Here is a quick look at some of the issues facing employers:
- There Are No Magical Tools That Find an Honest Person
In the wake of the financial meltdown and home mortgage crisis, and what appears to many to be a general deterioration of corporate ethics and morality, more emphasis is now placed on the age-old question asked by Greek philosopher Diogenes: How do you find an honest person?
Part of the challenge in safe hiring is that by definition, employers are seeking an elusive quality. Ultimately, the ability to find an honest person depends on the correct use of a number of overlapping tools. These include: 1) a number of objective fact-finding tools such as pre-employment screening and reference checks, 2) tools used to convince applicants to be self-revealing (applications and interviews), 3) a variety of assessment tools that are now available to employers, and 4) to a subjective extent, instinct and intuition. However, reliance only on instinct and intuition can be dangerous. Consider this fact—every dishonest person ever hired was sized up by someone and deemed a good fit for the job.
- It is Almost Impossible to Spot Deception at Interviews
Even if Diogenes had found an honest person, there is a body of modern evidence that suggests it is difficult for anyone, from ancient philosophers to modern day employers, to use an interview to determine who is really who. Employers have a distinct challenge when it comes to spotting those attempting to deceive. Industry statistics suggest that as many as 40% of all job applicants falsify information about their credentials. There is also scientific evident to suggest that even if the honest person appeared for an interview, it might be difficult, if not nearly impossible, for an average employer or Human Resources professional to even detect who is honest or dishonest. There is now a body of scientific evidence to suggest the human beings are not nearly as good as they think they are in determining who is honest or dishonest, so trying to spot the dishonest applicants at interviews is difficult if not impossible.
- Compliance with Hiring Laws
Certainly, all citizens have a reasonable expectation of privacy and a right to be treated fairly; yet, at the same time, an employer has the right to make diligent and reasonable job-related inquiries into a person’s background so that the company, its employees, and the public are not placed at risk. Employers need to know if there are facts about an applicant that are either job related or run contrary to a “business necessity,” such as creating an unacceptable risk factor. Laws associated with hiring and the employment screening processes have sought to achieve a balance between privacy and fairness on the one hand, and due diligence and business necessity on the other. Since laws can and do vary from one state to another, multi-state employers are faced with a difficult task of staying up-to-date with all the legal obstacles to keep the hiring process within specified legal boundaries.
- There is No Instant Database That Gives All the Answers
Unfortunately, there is no magic database in existence for employers to use. There is no national credentials database where an employer can instantly confirm an applicant’s past employment or education. There is no public record database where an employer can instantly find out if the applicant has a criminal record, a problematic driving record, or a job-related civil lawsuit. It would be helpful if there was a magic website called www.ShouldIHireThisPersonOrNot.com, where an employer received an instant answer, but that just does not exist and is unlikely to do so in the foreseeable future.
Some employers have been given the legal authority to obtain government criminal records when filling positions involving security or access to groups at risk. In many states, for positions involving access to vulnerable patients or children, screeners for hospitals and school districts can submit applicants’ fingerprints to be checked by the FBI or state authorities. However, as discussed in later chapters, even that database does not have all the answers for employers.
- The Effects of Corporate Culture and Other Impediments
At some firms, efforts at safe hiring may be impeded by the simple fact that it has not been done historically. Some employers are still reluctant to engage in background screening out of a concern that an applicant may find it insulting.
There is, even more, reluctance to perform screening for higher-level positions, especially positions with a “C” in the title, such as CEO or CFO. The higher a person is in the organization, the more harm that person can potentially do to that organization. Internationally, the idea of background checks is just not part of the cultural norm in many countries.
This information was taken from The Safe Hiring Manual 3rd Edition by Lester S. Rosen. For more information on this publication, please visit the BRB Bookstore.