Background Checks,

References and Verifying

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Background Checks

This process for screening job applicants may include: – Contacting references– Verifying past employment– Verifying past military service– Confirming the candidate actually has degrees, licenses, etc.– Checking driving records– Checking for criminal convictions– Examining credit reports

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Background Checks

• After hiring, the employer must also obtain documentation verifying the employee’s right to work in the U.S.

• These activities raise legal issues, including:– Negligent hiring

– Defamation

– Compliance with the Fair Credit Reporting Act

– Compliance with the Immigration Reform & Control Act

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Employer Responsibility forEmployee Wrongdoing

Employers are generally liable for harm to others caused by employees acting within the scope of their employment:

– Their actions relate to the kind of activities they were hired to perform;

– The actions take place substantially within the workplace, during working hours;

– And serve, at least partly, the interests of employer.

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Negligent Hiring

Employers, like others, have a duty to exercise reasonable care in carrying out certain activities. If they fail, they may be guilty of:

– Negligent hiring– Negligent training– Negligent supervision– Negligent retention

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Elements of a Claim of Negligent Hiring

A duty to others exists which requires an employer to take reasonable steps to avoid hiring unfit employees based on:

– Foreseeability of harm to others if unfit person is hired for a particular job.

– Knowledge of unfitness that employer had or should have had if proper hiring procedures were used.

– Public policy.

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Elements of a Claim of Negligent Hiring

• The employer fails to exercise the proper degree of care and hires an unfit employee.

• A third party is harmed or injured by the unfit employee.

• The employer’s failure to exercise care is the proximate cause of the harm or injury.

NEGLIGENT HIRING: Background or Reference Check

• Crucial to verify information from application and interview

• Failure to conduct background check may result in liability for negligent hiring

• After-acquired evidence may also help in wrongful termination suits

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Florida Negligent Hiring $

• A Tallahassee, Florida furniture company has been assessed a $2.5-million judgement because a deliveryman, who used a knife to attack a customer in her home, was hired negligently.  Court documents indicate that the man had a history of violent crime.

• A Kmart security officer cost his employer $3.8-million after he tackled and assaulted a customer who was returning a purchase. The guard’s partially-completed employment application was key evidence for prosecutors.  The man had been terminated from several previous jobs, but personnel directors at Kmart failed to look into the reasons he failed to fill out his application fully

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Conducting Background Checks

• No particular measure is required in all cases, but employers should always follow their own procedures.

• Be especially wary of rush, last-minute hiring decisions.

• Inconsistencies and gaps in information provided by applicants must be discovered and confronted.

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Conducting Background Checks

• The detail of a background check will depend on the position to be filled.– Background checks should be more extensive if

there is a greater chance that unfit employees could do harm to others.

• Employers should document all attempts to gather information, even if those efforts are not successful.

• If you must hire without a background check, hire, do the check, and then terminate the employee if unfit.

CONTROLLED SUBSTANCES AND ALCOHOL USE TESTING

REGULATIONSFOR MANAGEMENT

Critical Information

This presentation outlines important U.S. regulations. •Employer MUST ensure that all regulations are followed by drivers•Employer is responsible for any violation committed by a driver

Applicability

Employers and drivers who operate CMVs in the U.S. and are subject to:

– Commercial driver’s license requirements– Licencia Federal de Conductor requirements– Commercial driver’s license requirements of the

Canadian National Safety Code

Preemption

Controlled Substance and Alcohol testing rules have priority over all U.S. state and local law except when criminal action is being taken for acts of reckless conduct.

Prohibitions

• Alcohol Concentration above the legal limit set by the FMCSA

• On-duty use• Pre-duty use• Use following an accident

Controlled Substance Testing

If a driver tests positive for a controlled substance:• Driver shall NOT report to duty, remain on duty or

perform safety sensitive functions• Employer shall NOT permit the driver to perform

safety sensitive functions• A driver may be required to inform the employer of

any therapeutic drug use

Employer Responsibilities

Immediately remove employee from safety sensitive functions (until return to duty process is completed) after receipt of:• Positive drug test results

• Verified tainted or substituted drug test results

• Alcohol test greater than .04

Temporarily remove employee from safety sensitive functions after receipt of:

• Alcohol test between 0.02 and 0.39

• A diluted specimen

•Invalid drug test requiring a 2nd collection under direct observation

Employer Responsibilities

Required Tests

• Pre-employment (Controlled Substances Test only)• Post Accident• Random• Reasonable Suspicion• Return to Duty• Follow-Up

Random Testing

Companies must randomly test drivers at a minimum annual percentage rate of:• 10% of the number of drivers for alcohol testing• 50% for controlled substances testing

Reasonable Suspicion Testing

A driver MUST submit to an alcohol and/or controlled substance test if there is reasonable suspicion that the prohibitions concerning alcohol and/or controlled substances have been violated.

Reasonable Suspicion Testing

Suspicion MUST be based on specific observations of the supervisor or company official concerning the driver’s:

– Behavior

– Speech

– Body odor (such as marijuana or alcohol)

Return-To-Duty Testing

An employer shall ensure that before a driver returns to duty:• Driver’s return-to-duty alcohol test indicates an alcohol concentration of less than 0.02• Driver’s return-to-duty controlled substances test indicates a negative result

Refusal to Submit

• No driver shall refuse to submit to a required test• No employer shall permit a refusing driver to

perform safety sensitive functions

Controlled Substances

Laboratories MUST test for:• Marijuana• Cocaine• Opiates• Amphetamines• Phencyclidine (PCP)

Previous Employer Inquiries

• Can only be requested with written consent of employee

• Employer must request information regarding a new employee from all DOT-regulated employers from the previous 2 years

• Employer must remove driver if information is not obtained in 30 days (unless good faith effort is documented)

Active Shooter

Training Objectives

• Define the following: what is an ‘active shooter’?• Steps that will increase surviving an active

shooter incident.

The Active Shooter Defined

An “Active Shooter” is an individual engaged in killing or attempting to kill people in a confined and populated area, in most cases, active shooters use firearms.

Mentality of Active Shooter

• Desire is to kill and seriously injure without concern for his safety or threat of capture

• Many times has intended victims and will search them out

• Accepts targets of opportunity while searching for or after finding intended victims

• Will continue to move throughout building/area until stopped by law enforcement, suicide, or other intervention

Mentality of Active Shooter

• Active Shooter’s intent is to kill and injure• Bottom line: you need to take direct responsibility

for your personal safety and security

Survival Mindset

Be Vigilant• Gain a basic understanding of situation• Become attuned to work environment• Predetermined mindset will help you take rapid,

effective actions

Survival Mindset

Be Preparation• Looking at your work environment through the lens

of survival• “What if” questions are critical in developing

effective response strategies• Survivors prepare themselves both mentally and

emotionally to do whatever it takes to survive

Survival Mindset

Rehearsal• Mentally or physically practicing your plan which

will reduce response time and build confidence• A survival booster

Course of Action

• Get out, if safe, is there a path of escape?• Move quickly; don’t wait for others to validate your

decision• Leave belongings behind• Survival chances increase if you are not where shooter

is or to go where he can’t see you

Course of Action

• If you can’t get out secure the immediate area “hide out” whether backroom, office, or bathroom

- Lock the door if possible. • Most doors may provide some protection - Block/barricade the door using whatever is available

desks, file cabinets, books, other furniture - If the shooter enters your room and leaves, lock/barricade

the door behind him - If safe allow others to seek refuge with you - If two or more of you, DO NOT huddle together

Course of Action

DOORS, WINDOWS, OPENINGS, and NOISE

- Close blinds - Block windows - Turn off electronics (TV, radio, etc.) - Dim or face computer monitors away from windows or doors - Silence cell phones (put on vibrate) - Place signs in exterior windows to identify the location of injured persons - Keep occupants calm and quiet - After securing the room. People should be positioned out of sight and behind items that might offer additional protection – walls, desks, file cabinets, etc. - Stay low- reduce your profile - Remain calm – it can have a contagious effect on others - Keep others focused on survival

Course of Action

• You must assume the shooter’s intentions are lethal.• You’ll need to become more aggressive than you

ever thought possible.• Develop a survival mindset that you have “what it

takes” to survive when your life is on the line

What to Report

• Your specific location• Number of people at your specific location.• Injuries - Number of people injured - Type of injuries

What to Report

Assailant's: - Specific location - Number of assailant's - Race, gender, approx. age - Clothing color and style - Physical features – height, weight, facial hair, glasses - Type of weapons (rifle/shotgun, handgun) - Backpack - Do you recognize the shooter? What’s his name? - Have you heard explosions separate from gunshots?

Take a Mental Picture

What did the guy in the last slide look like?

Your Response

Treat the injured

- Remember basic first aid

- For bleeding apply pressure and elevate

- Be creative in identifying items to use for this purpose – clothing, paper towels, feminine hygiene products, news papers, etc.

Law Enforcement Objective

• Law enforcement will immediately respond to the area• Law enforcement’s goal is to locate, contain, and stop the

shooter• The safest place for you to be is inside a secure room• The shooter will not flee when law enforcement enters the

building, instead he will have additional targets to shoot• Remember the shooter’s mindset

is not escape. His goal is to kill and injure.

Law Enforcement Responders

• When law enforcement officers enter the room, do not present a threat to them

• Do not point at them or the shooter• Do not make quick movements• Do not run towards them or try to hug them• Do not scream or yell

Summary

Active Shooter• You should take a leadership role• “Get out”• “Hide out” seek secure area• Calm, reassure, and quiet others• Report the incident• Treat injured• “Keep out” • “Take out”

Law enforcement response - Objective is to neutralize threat - Evacuation - Follow up medical care, interview, counseling - Investigation

Discussion and Questions

What if…