Background check

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Employer Liability for Negligent Hiring

Published September 9, 2013 by Mayrbear's Lair

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Smart business leaders have a firm grasp of comprehending the law and recognizing its limitations when it comes to operating a business. Walsh (2013) explains that, “No single set of employment law covers all workers” (Walsh, 2013). In fact, employment laws consists of a variety of federal, state, and local laws that are contingent upon such things like: (a) whether the individual is a government employee, (b) whether the individual works in the private sector, (c) the size of their company or (d) whether they have any union affiliation. In addition, employment laws are ever changing, as new employment laws are created and old ones are reinterpreted.

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To better understand these laws, we will examine a case study of a scenario involving  a 17 year old plaintiff that seeks damages as a result of being violently assaulted by an employee of the defendant, XYZ Motor Freight Inc. When XYZ hired the employee that committed the assault, they questioned the individual with respect to prior vehicular offenses and criminal convictions. However, due to their position on EEOC discrimination statutes, XYZ only chose to verify his vehicular offenses and ignored his negative response to the criminal convictions inquiry. Rassas (2011) suggests that employers who have a working knowledge of labor law and the obligations of employers can help them avoid litigious events such as this. A lack of knowledge can unintentionally result in a failure to abide by a law and impact the operation of an organization significantly (Rassas, 2011). For example, employment laws have been established to protect both employees and employers by imposing certain responsibilities. For employees, employment at will is a default rule that permit employers to terminate employees without having a good reason. This means the employee has the freedom to engage in collective bargaining with their employers. In addition, according to employment laws, each relationship is subject to the terms and conditions of employment that meet minimum required standards. However, in today’s society the most effective and successful people, whether employer or employee, should also take responsibility and accountability to ensure their own safety as well as those of others.

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XYZ’s position is that it did not seek to verify the criminal background check citing they had no duty to do so because of a lack of foreseeability. They further defended their position stating that to impose such a duty would be against public policy and place too great a burden on them. However, in this case, failing to do so created another burden for them. Seaquist (2012) purports that when an employee is working within the scope of their employment, the employer will be liable to third parties for the torts of their workers under the doctrine of respondent superior (Seaquist, 2012). The plaintiff in this case seeks justice arguing that the employer should have been cognizant that the employee they hired was dangerous because he had a history and a record of violent sex related crimes when they hired him. In other words, by not checking his criminal background they created a dangerous condition by putting him in a situation in which he was able to bring harm to others because they failed to verify his criminal record.

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Both sides have very effective defenses to support their position. XYZ claims they did not verify the criminal background check because they were acting in accordance with EEOC discrimination law issues. However, because the employee was hired to participate in interstate commerce, it is their responsibility to make sure the individual performs their duties to best of their ability and trust they will not engage in misconduct or inappropriate behavior. In my view, if I were a business leader for XYZ, I would be concerned about the damages from the negative publicity alone that a case like this attracts. That is reason enough to engage in thorough employee investigations scrutinizing criminal backgrounds a little closer because of the nature of the trucking industry. As a part of the legal counsel for XYZ, I would suggest a settlement to keep the matter private to preserve the organization’s reputation, and take responsibility for their employee’s ethical misconduct by paying any and all damages to the plaintiff as an act of good faith that supports an ethical corporate climate.

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The plaintiff is in her right to seek damages for being so horrifically violated. However, the jury must decide on whether or not XYZ was responsible for negligence because they were acting in accordance with EEOC mandates with respect to the background check issue. Unfortunately, in a life changing situation as this, hopefully both parties learned some valuable life lessons from this experience. The defendant can begin to take more effective methods to insure the competence of their employees, and the plaintiff came to understand, that although an individual may represent an organization, that does not mean the individual is free of behavior from criminal or ethical misconduct. The moral of the story: never, ever, accept a ride from a stranger. The movie Hitchhiker was a good reminder as to why.

References:

Rassas, L. (2011). Employment law: a guide to hiring, managing, and firing employers and employees. New York, NY: Aspen Publishers.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Walsh, D. (2013). Employment law for human resource practice. Mason, OH: Cengage Learning.

Testing Employees

Published May 31, 2013 by Mayrbear's Lair

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Managers that seek to fill staff positions use a variety of employee testing techniques. It is one of the most effective ways a leader can ascertain whether an individual is qualified and skilled for a position at their organization. Hoffman (2001) predicates that organizational testing is on the rise. This is primarily due to the significant improvements of the tests themselves as a result of mathematical breakthroughs and advances in computer technology. Consequently, leaders now have the ability to review results more quickly and far more accurately. In addition, tests help managers filter out unappealing candidates and can differentiate those who are highly competent potentials (Hoffman, 2001). This research examines the role of employee testing in relation to the hiring process. We will also take a look at the components that go into designing the most effective screening methods to yield the highest results. Our research will illustrate that even though assessments can intimidate and scare off prospective applicants, testing employees is an important part of the staff selection process because it helps identify a candidate’s abilities, it presents a way to collect genuine and direct information, and can help distinguish high performance job candidates.

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The Role of Testing

Leaders and Human Resource (HR) managers’ primary focus is to extract accurate information and responses in interviewees during the hiring process. Like thorough detectives, they gather data and initiate interviews to ascertain whether to offer the potential applicant the position they seek to fill. Falcone (2008) postulates that employers who yield the best results put a plan together that helps ascertain the following information: (a) what is the reason and motivation behind the applicant seeking the position, (b) does the person fill a need for the organization, (c) is the individual willing to commit to progressive career management with the firm or filling a temporary need waiting for the next occupational opportunity, (d) is the individual merely looking for a salary increase in their current position and using this as an opportunity for leverage, (e) will the individual adhere to specific job duties laid out in the job description or are they willing and able to assume additional responsibilities, (f) how well does the individual handle emotions like stress and constructive criticism, and (g) what kind of work ethic does the individual have (Falcone, 2008). In addition, leaders should strive to develop a strategic plan that garners the best responses and meet employers’ expectations.

One method organizations devise as a means to validate a candidate’s responses is by way of reference checks. Falcone (2008) points out that equally significant, HR Managers must be careful to avoid creating tests that will yield responses which encourage applicants to retort with long inventories or flowery adjectives regarding traits such as their nobility, intelligence, commitments, work ethics, and integrity. Adjectives are not proven claims, can waste time, and act as a side-track tactic for obtaining relevant information (Falcone, 2008). The tester’s main concern is acquiring concrete evidence of how a candidate will perform, contribute to the organizational goals, and fit on the company team.

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Designing Effective Tests

Testing employees is an effective method to deduce employee competencies. This includes gathering information from a candidate with components like screening tools, exams, background checks, and interviews. No matter how one slices it, employers are looking to select the strongest candidates and the best people to fill open positions. Simultaneously, they are required to satisfy EEO, ADA, and civil rights laws to avoid costly and timely litigation. Designing and implementing effective employment tests helps managers find the best candidates that are highly motivated and driven to help them pursue organizational goals with efficiency and fairness. Therefore, employment testing is an efficient tool and an imperative component toward a manager’s finding high performance workers successfully. Wigdor’s (1989) research asserts that methods of testing should include the examination of skill levels, knowledge, and capabilities designed according to a set of predetermined conditions and guidelines specific to their organization. In addition, employers use testing to evaluate a candidate’s achievements, aptitude, abilities, and personality traits (Wigdor, 1989).

Employers have also changed the climate of the testing process at the workplace because of the efforts of the Equal Employment Opportunity Commission (EEOC). For example, Meyers (2008) reveals that a recent study conducted from the National Research Council suggests that the widely used employment tests provided by the Department of Labor’s General Aptitude Test Battery allow employers to hire a wider demographic range. These tests are designed to preserve the benefits of the testing in a manner that breaks through the discrimination barriers of the past. As a result, there have been an increasing number of minorities in the workplace. In short, employers are now able to seek qualified candidates who are highly intelligent in a safe, supportive arena in a way that is fair to any potential candidate. In addition, Meyers (2008) discloses that the EEOC recently issued a document stating that anti-discrimination laws must be included in the design of employer tests, personality tests, medical examinations, criminal background checks, and credit checks. The EEOC contends that testing and other methods of screening are efficient methods to screen vast numbers of applicants and helps in the decision making process (Meyers, 2008). Employers are urged to educate themselves on these regulations to avoid violation of anti-discrimination laws and recommend employers implement “best practices” conduct when employing tests and screening tools.

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Testing employees is very effective for collecting valuable data. To achieve the best results, Arthur (1991) contends the environment should be consistent each time the test is conducted. This includes elements such as seating, space, ambiance, ventilation, and lighting. In addition, the same tools or screening devices should be distributed in the same fashion each time the test is given with the purpose of the test clearly explained to the candidate from the onset (Arthur, 1991). For instance, when an applicant submits information with adjectives purporting they are not afraid to work hard, the interviewer must find a way for the candidate to elaborate. For example, the interviewer may communicate to the applicant with a response that gives praise to hard workers and follow that by asking the applicant to share an experience of how hard they work in relation to their colleagues. Leaders do not want to intimidate and scare off potential hires, so they look for ways to ascertain the best information to help them in the decision making process. To find the best possible candidates, effective leaders and HR managers design and create tests that will help them attract, recruit, and maintain the highest level performers.

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Conclusion

Employee testing presents an effective way to collect genuine and direct information. They are procedures that help determine whether an employee is an organizational fit. Proper administration should fall within the guidelines and regulations of the EEO, ADA, and civil laws to avoid any violation with privacy or discrimination issues. The EEOC offers employers fact sheets with information and guidelines that clearly lay out the parameters to help managers veer away from any potential pitfalls. Arthur’s (1991) research suggests that tests should be designed to measure skill levels and also help determine how driven an individual is as well as identify a potential hire’s undesirable traits and shortcomings. In addition, the EEOC requires that testing include a written policy that clearly identifies the main objectives of the position, regardless of religion, creed, race, gender, age, disability, or ethnicity (Arthur, 1991). In conclusion, while it can intimidate and scare off potential applicants, testing employees is a significant part of the hiring process because it identifies a candidate’s abilities and helps differentiate unappealing applicants from those who are high level performers.

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References

Arthur, D. (1991, August). Conducting pre-employment and employment tests. supervisory management. Saranac Lake, NY, USA. Retrieved May 15, 2013, from http://search.proquest.com/docview/214226575?accountid=32521

Falcone, P. (2008). 96 great interview questions to ask before you hire. New York, NY: AMACOM.

Hoffman, E. (2001). Ace the corporate personality test. New York, NY: McGraw-Hill.

Meyers, J. L. (2008, March 12). Employment tests. Pittsburgh Post – Gazette. Pittsburgh, PA, USA. Retrieved May 15, 2013, from http://search.proquest.com.proxy-library.ashford.edu/docview/390705134?accountid=32521

Wigdor, A. (1989, August 21). Employment tests can be useful. Chicago Tribune. Chicago, IL, USA. Retrieved 15 2013, May , from http://search.proquest.com/docview/282608644?accountid=32521