<p>A recently terminated employee threatens you. One of your team members hasn’t reported for work in days. The underage intern is displaying signs of physical abuse. In each of these instances, should you call should you call the police? In this episode of <em>Honest HR</em>, host Amber Clayton is joined by employment law specialists Janell Stanton and Brittany Nicholls to discuss when to get in touch with law enforcement when something out of the ordinary happens at your workplace, as well as the essentials of a well thought out emergency plan for your organization.<br /><br /><b>Earn SHRM PDCs for Listening to This Episode<br /></b>Episodes of <em>Honest HR</em> help you build your competencies while also earning professional development credits (PDCs) toward your SHRM-CP or SHRM-SCP recertification. All relevant details, including the Activity IDs, are provided during the episode.</p><p>This episode of Honest HR is sponsored by <a href="https://www.namely.com/">Namely</a>.</p>
A recently terminated employee threatens you. One of your team members hasn’t reported for work in days. The underage intern is displaying signs of physical abuse. In each of these instances, should you call should you call the police? In this episode of Honest HR, host Amber Clayton is joined by employment law specialists Janell Stanton and Brittany Nicholls to discuss when to get in touch with law enforcement when something out of the ordinary happens at your workplace, as well as the essentials of a well thought out emergency plan for your organization.
Earn SHRM PDCs for Listening to This Episode
Episodes of Honest HR help you build your competencies while also earning professional development credits (PDCs) toward your SHRM-CP or SHRM-SCP recertification. All relevant details, including the Activity IDs, are provided during the episode.
This episode of Honest HR is sponsored by Namely.
Announcer:
Honest HR is brought to you by Namely. Namely is an all in one HR solution everyone on your team will love and use. Namely's centralized platform can save you time and build company culture. For a limited time, get your first month free at Namely.com. That's Namely.com.
Amber Clayton:
Welcome to Honest HR, the podcast for all of us HR professionals, people managers, and team leads' intent on growing and developing our companies for the better. We bring you honest, forward thinking conversations and relatable stories from the workplace that challenge the way it's always been done. Because after all, you have to push back to move forward.
Wendy Fong:
Honest HR is a podcast from SHRM, the Society for Human Resource Management. And by listening, you're helping create better workplaces and a better world. I'm Wendy Fong.
Amber Clayton:
I'm Amber Clayton.
Gloria Sinclair Miller:
And I am Gloria Sinclair Miller. Now let's get honest.
Amber Clayton:
Hello, everyone and welcome back. I'm your host, Amber Clayton, director of SHRM's Knowledge Center. On our episode today, we're going to start part two of our miniseries on the technical competency, HR expertise, risk management, law enforcement and HR, when to involve police. This podcast is approved to provide re-certification PDCs, but only if you listen to the full mini series. In episode one, we talked about the increase of domestic violence since the beginning of the pandemic. Many employers have never had to experience domestic violence issues in the workplace. But those who have, they often ask, should we notify the police? It got me thinking about my experience in the questions we get for members around when and if they should call the police.
Unfortunately, there's not a handy guide or checklist for employers. Whether to involve the police or not will depend on the circumstances of the situation. On our episode today, we will discuss various situations that HR professionals encounter and when it might be appropriate to involve law enforcement. We can't possibly cover every scenario, but we will talk about some that are common related to background checks, child abuse, wellness checks, domestic violence, and more. I am pleased to be joined by Janell Stanton, managing attorney, and Brittany Nicholls, senior associate employment law with Wagner, Falconer, & Judd LTD. For our listeners who may not be aware, SHRM has partnered with LegalShield for a member benefit called SHRM LegalNetwork.
The SHRM LegalNetwork provides affordable legal service for small businesses who may need legal help. Janell and Brittany are part of the SHRM LegalNetwork. You could find more information about this benefit at SHRM.org/legalnetwork. I've had the pleasure of working with both of you on a podcast, as well as a LinkedIn Live session. You're both so knowledgeable, and I thank you for being with us today, as I know our audience will gain some useful information. Let's start with telling our audience a little bit about yourselves and your roles. Janell?
Janell Stanton:
Yeah, thank you so much, Amber, and thank you for having us back. We've really enjoyed the opportunity to present for your group. I'm Janell Stanton. I am the managing attorney of the employment law group here at Wagner, Falconer, & Judd, practicing exclusively management side labor and employment law.
Amber Clayton:
Great. And out of curiosity, what made you decide to work in the area of employment law?
Janell Stanton:
I think that employment law is a very fascinating area. There's so many multifaceted components to each question that really allows you to get deep, dig in, and work through sort of the mental gymnastics of all of the acronym heavy employment laws that exist out there.
Amber Clayton:
Great. And how about you, Brittany?
Brittany Nicholls:
Well, first of all, I want to echo Janell's sentiments. Thanks so much for having us back. We love these kind of formats where we can be a little casual, but still give tons of information, useful information to employers. I am a senior associate at Wagner, Falconer, & Judd, also in the employment law division. The reason I really love employment law, why I got into it, is similar to Janell. I mean, it's just so interesting. You're hearing about people's lives, and we have one of the largest labor forces in the world here in the United States and people spend so much of their lives at work. These are real issues that impact people tremendously on not only a professional level, but also really it's a personal. Even though people like to say it's business, it's not personal, I mean, come on, no one can really separate the two. It's a great area to be in.
Amber Clayton:
Great. Great. Well, thank you again for being here. In the knowledge center, we get numerous employment law related questions from our members who are HR professionals, and we get those questions on sexual harassment, job performance issues, employee conduct, attendance, terminations, and you name it. Sometimes we're asked if they should call the police, especially with incidents that involved threats or threats of violence. I know I can remember in my own experience as an HR practitioner many years ago where an employee had actually threatened to kill me after she was terminated of her theft. She had already left the building, but I took the threat seriously and contacted the police. The police at the time couldn't do much other than suggest a protective order, but I did decide against it at the time.
Fortunately, nothing happened to me, but it definitely made my time to walking to and from of the building, especially at night, very nerve-racking. Speaking of theft, theft is common in the workplace, and it was for me. I worked in retail. Whether it's time clock theft where someone's punching in and out but not working, or theft at the company's money or coworkers belongings, I've heard different perspectives on contacting the police for theft. Some have said contact them so they can do their own investigation, and others have said contact them if it's over a certain dollar amount. What advice do you typically give clients when it comes to theft and getting the police involved?
Janell Stanton:
Unfortunately, theft occurs in many contexts. Like you said, time theft, theft of actual goods. We all know about just kind of small little stealing a pen and some pads of paper can add up, right? One thing I want to bring up just before I launch in is all of these questions can be so fact specific. Generally speaking, it's usually not the duty of anybody, except for those in law enforcement to be required to act. But with that said, digging into theft a little bit, I would always counsel a client to say, "What are your goals? What was lost? What industry are you working in? Is there a theft that actually creates a duty to report?"
For example, if your business is in medical marijuana or pharmacies and you have items that are controlled substance, for example, and maybe the employee has stolen opioids or they have taken marijuana or things that would create some other legal issue or a criminal fact that police really should be brought into to look into. Another thing to think about is, is it embezzlement. Is the employee owing a fiduciary duty to the company or other stakeholders? In those situations, then absolutely. Reporting a theft or embezzlement to law enforcement would be recommended. There's also other industries that have background checks that need to be cleared as far as vulnerable populations.
Definitely those industries like retail, like you're talking about, where there is just unfortunately a high level of employee theft, think through... That's why I say, what are your goals? What's your industry? Know that you're not required to report it. But certainly if you are wanting to sort of purge your workplace of those types of issues, if other employees know you'll get reported to the police for theft, it can go a long way to preventing that again from other employees as well.
Amber Clayton:
Absolutely. Great advice. Another scenario that's actually come up in my past has had to do with wellness checks. I've had a couple of employees who didn't show up for work or call in for work for three days, which that happens very frequently with members who contact us. Usually we considered it at the time job abandonment and we considered it a voluntary termination. However, these employees that I had in particular were stellar and it was just really out of character for them not to show up to work. I was genuinely worried about them. I was hesitant to call the police to do a wellness check, so I didn't.
Fortunately, we did hear from both and they were okay. But I've heard of other stories where employees were found on the floor because they fell, or because they actually were deceased. What is your advice when it comes to doing a wellness check on an employee?
Brittany Nicholls:
It's so hard because you really care about your workforce. And at the same time, you don't want to overburden an industry like law enforcement with issues that maybe could be resolved directly between employer and employee. It's a judgment call. That said, there are some kind of guideposts that employers can look to. Amber, you mentioned if it's out of character for an employee to no call, no show, especially if it's someone that you've worked with for years, really know their attendance record, know them to be reliable and responsive, and if suddenly they are totally off the radar, you can't get ahold of them, you can't get ahold of their emergency contact, for example, and they just really aren't getting back to you for a long period of time, that could be a cause for concern.
And that's especially true if there are maybe some underlying facts and circumstances. If they're elderly, if they are known to have any substance abuse or alcohol issues or a disability, for example, those could be facts that kind of push you more toward let's be safe rather than sorry and make this call to law enforcement. In today's world also, we're much more isolated, given the pandemic. People are suffering more with mental health issues. Even suicide rates have gone up. In a lot of cases, I think it's good for employers to be aware that that's a resource available to them. They can contact law enforcement for a wellness check or a welfare check. Often if employers are in the same location as their employees, they're even allowed to like go with law enforcement sometimes, depends on the facts and the circumstances.
But if an employer feels, "This is totally out of character. I think my employee is really an imminent danger," or if they have other reasons like, "This employee is saying things that really sound scary, someone is after them, or they are making some sort of suicidal comments," then yes, absolutely, use that as a resource. That is part of what law enforcement is there to help us with as a society.
Janell Stanton:
Oh, I just want to piggyback off that too. I advised a client a few weeks ago now. They had an employee in that exact situation that you're talking about, Amber, who always came to work, was very reliable, and she hadn't shown up to work for several days. They contacted the police who did a welfare check, and it turned out that this employee had suffered a very severe stroke and was actually in the hospital. My client had considered terminating that employee based on no call, no show for three or more days.
We had to walk back their plans to terminate, talk about other ways to FMLA, ADA accommodation sort of issues. In that particular situation, they were able to discover through a wellness check that this employee had actually had a stroke. Really able to help the employee understand what was going on for the employer. It turned out the employee is going to be okay, but it just turned out to be the best solution for that company to do that.
Amber Clayton:
Something that Brittany said about contacting emergency contacts, I can remember a time when I had an employee who didn't show up for work, and again, out of character, I reached out to his emergency contact, which so happened to be his ex-wife. He wasn't very pleased when he found out that I contacted his ex-wife. For employees, please make sure you update your emergency contacts. I don't want to get involved in any kind of personal situations like that, but I was genuinely concerned about the person and reached out to the emergency contact. Fortunately, he was okay, but wasn't very happy with me for reaching out to his ex. With your scenario, Janell, one of the things I can say to employers is don't make an assumption.
Again, think about the wellness check whether or not this is out of character. I know oftentimes we kind of jump to the, "Well, they've missed three days. No call, no show. It's automatic job abandonment," but you never know what those situations are. It could be that the person is in the hospital or something has happened to them. Just kind of carefully think about that and make sure that you do your due diligence and ensure that it really is a job abandonment. Another experience that I had was with employees using work computers to look up pornographic websites. After reviewing the situations, we actually terminated the employees. What I've not had is an employee who looked up terrorist websites or child pornography.
We've actually had members who have had that happen to them. If an employer found out that an employee was looking at these types of sites, should they call the police or even the FBI? What should they do?
Janell Stanton:
I'm going to say yes, yes, yes. Do call the police. Do consider contacting the FBI. It's typically the FBI who's going to look into terrorist issues, child pornography issues. Absolutely. I would encourage reporting. Again, not required, but absolutely encouraged, especially if they have used your networks to access those types of websites. The other thing I wanted mention here and counsel on is in addition to contacting the police, contacting the FBI, I would recommend looking into contacting an outside firm to handle any potential security issues that may have arisen with accessing those types of websites, but also to make sure that materials, things like that are not saved on any type of company servers, that those are collected as evidence potentially in a criminal case, not disposed of.
An IT company, an internet security firm is going to be able to help kind of do that forensic analysis of your networks, your computers, run virus scans, do all those things to help protect the company, but also to aid those law enforcement agencies in helping them do their investigation. And then also I would recommend to a client who came to me, we need to talk about better safety measures in your computer networks. How do you block access to those types of websites in the future? Just a couple of things to think about after making that report as far as how to protect those servers, your computer equipment, and things like that, other devices.
Amber Clayton:
Thank you for saying that. On the timing of it, just to be clear, you contact the police, the FBI first, and then the internet security company?
Janell Stanton:
Oh yes. Yep. Allow them to kind of start the investigation. It is possible that there may be personnel within the FBI or the law enforcement agency themselves that will want to actually do the forensic analysis of the computer. You may not even need the security company for that. They might and very well may have the resources for that and will want to potentially seize the laptop or things like that as evidence. It may not even be something an internet security firm gets involved in. But do think about, like I said, some of those items for future better safety measures, firewalls, viruses, that sort of thing.
Amber Clayton:
It's funny, I never really thought about the internet security piece that you mentioned. Of course, obviously putting these policies and practices into place is important to begin with, but contacting an internet security company or working with the FBI or the police on that is smart. I never really realized that before. I guess, I've never personally been in that situation where I've had someone who's looked up those websites, but I think it's really good advice. In episode one, we talked about domestic violence. As I mentioned in that episode, we've received numerous questions from members on how to deal with it when it enters the workplace, especially around restraining orders. Some employers have rather sticky situations when a married couple or parents, they work together.
One has a restraining order against the other. We actually created an FAQ on this topic since it has come up several times. I'm curious, have either of you had these types of situations come up with your clients? And if so, what was your guidance? Is the guidance the same if an employer learns of potential child abuse? I mentioned to you before the podcast that there was something that came up within member about leaving a child at home while the person's working and child abuse, child neglect. What should employers do, and what have you seen as far as your clients?
Brittany Nicholls:
These are such great fraught questions, of course, and always very fact specific and even state or jurisdiction specific. With respect to protective orders, I mean, those are orders from a court. If a workplace is designated as a restricted area for certain individuals to be in contact, then an employer really needs to do everything that they can to help implement safety measures that are reasonable to enforce that order really. That may include steps like contacting law enforcement if the order is being violated. But hopefully before that would even happen, there can be some preventative measures put in place. If it's an order where just the employee has the order against a non-employee, the situation is a little bit more cut and dry.
Employers should notify security, the building security, front desk security, whatever sort of kind of firewalls that are in place before this employee could be breached, right? It's important to maintain the employee's privacy to the extent possible, but definitely let those people who are kind of on the front lines, so to speak, of security, let those people with a need to know know. This is what's going on. This is what our safety plan is. Incorporate any restrictions in that order into the company's safety plan, all of these things, to the extent, reasonable to make sure that that order is being honored. Employers can also work with the employee in question on a more personal level, just to try and accommodate them. For example, in this situation, you mentioned, Amber, where your life was really threatened by a former employee.
It would be a great idea for that employer to say, "You know what, Amber, I know that you decided not to go with the protective order route. Even if you did, let's make sure you get to your car safely every night. We can get you an escort to and from the building if you're parking far away, or we're moving your parking spot right here under the lamp so that you can see all around you." Things like that that don't need to be written word for word into the order. There are ways that an employer can still accommodate an employee to ensure their safety. Because as a general duty under OSHA, employers have the duty to maintain a safe and healthy workplace for their employees. And that's going to include implementing these security measures for enforcement of a protective order.
Now, you mentioned this could happen where you have two employees involved, one gets a protective order against another, and that gets a lot more complicated, especially when you're dealing with a very small workforce. If reassignment or rescheduling is not an option such that these employees can be kept separate and not in violation of an order, it may need to come down to actually terminating one of the employees. This is especially the case if underlying conduct in the order violates company policy, for example. I mean, I know some of these situations really get into a he said, she said. Sometimes there's orders going in both directions, and then it's like, well, who do we terminate?
Amber Clayton:
That's exactly what I was thinking. Who do you pick? If you pick the person who's brought the complaint forward, does it look like retaliation? When it's that he said, she said, she said, she said, whatever it is, how do you decide?
Brittany Nicholls:
It's a very difficult call, and it's very fact specific, I would say. Employers should do their own investigation if needed. Some of that is going to come down to, who's credible? What are the witnesses saying? What am I hearing from either party? What is the court ultimately deciding? Because that's a fact finder as well. That is persuasive evidence. It may be that an employer says neither of these people are a fit for this company culture because of the underlying conduct, but it really is... It's a really difficult call for employers, I will say. I could come to probably 20 different answers for 20 different scenarios. So it depends. I know, I hate when lawyers say that, it depends, but it truly does. It's not black and white because relationship issues just can run the gamut, but do an investigation if needed.
Use the evidence and the facts that are available to you. Sometimes you have to make those credibility judgements. Make sure you're keeping really great documentation of how you're reaching whatever decisions you're coming to. And if possible and if it makes sense and you're able to rearrange schedules or reassign people, that's also an option if you want to keep both employees. But always, always the very foundational thing to remember is general duty. Make sure everyone is safe and healthy in your workplace, and you're taking all the steps reasonable to implement a safe and healthy workplace. And if that means someone needs to be terminated, that's what that means really. That is the like bare minimum that employees have to provide is a safe and healthy workplace.
Amber Clayton:
Wow. Yeah, I mean, it's definitely a tough situation for employers. I mentioned also child abuse, potential child abuse, and I've heard that people can be or mandatory reporters. Can you tell us who's considered a mandatory reporter and explain what that means is?
Janell Stanton:
Typically, those who would be considered a mandatory reporter are those that work with children, and the most common examples are teachers, medical professionals, therapists. I actually was considered a mandatory reporter in a previous life. I worked for a foster care agency and placed children into foster homes. I was considered a mandatory reporter. Different states have different rules about who is considered a reporter, but generally what it means is that those who occupy a role that puts them into a mandatory reporter status, those individuals must report suspected child abuse to the authorities, regardless of whether they want to or not. And in fact, it is actually a crime for those who are mandatory reporters that fail to make a report of suspected child abuse.
This is one of those areas of the law where actually the reporting to law enforcement is required. A lot of these state laws are going to actually put in place training requirements. One thing I want to point out is California, because we always have to pick on California in every podcast, is AB 1963. This is a new law in 2021 that applies to companies in California that have five or more employees and that employ minors. In California, those companies that have minors working for them, anybody who's in human resources or is a direct supervisor of a minor has now become a mandatory reporter. Those reporting obligations they're limited to instances of sexual abuse there, but it's still something that I would encourage those that suspect any abuse who occupy an HR or manager role in California report that.
And just note that if you are a covered employer, you do have to provide your employees with training so that they can know how to identify and report child abuse and neglect. It's really critical that those companies employing minors take heed of that. If you're not in California and you do employ minors, again, remember what Brittany said, you have a general duty to protect your employees under OSHA. If you think that a child working for you has been a victim of child abuse, sexual abuse, neglect, I highly encourage reporting that to the local authorities. You want to keep your employees safe, especially those occupying a vulnerable.... That are of a vulnerable population.
Amber Clayton:
The mandatory reporter piece of it in California is interesting. Do you feel like... I'm sure other states may follow the lead. It tends to happen that way sometimes I think with California employment law.
Janell Stanton:
I would anticipate there would be new laws, especially in those states that really do tend to follow California's lead, New York, New Jersey, Massachusetts, Illinois, other states where they're kind of very fast to mimic what California is doing. I would anticipate a spread of those types of laws.
Amber Clayton:
Do you encourage employers to have some type of a policy related to the mandatory reporting?
Janell Stanton:
If you have employees that are mandatory reporters, if you run a daycare, if you are a teacher, a medical professional, I absolutely would recommend having a policy in place for those particular employees to make sure that they understand what abuse looks like, what are the things to be looking for, and the training that they're going to receive, putting in place a training program for them. You want to make sure that your employees are equipped with the tools that they'll need so that they can fulfill their role as a mandatory reporter and, again, keeping children safe. And like I said, I've been in a mandatory reporter situation before.
It can be a hard position to occupy, but take that role and note that you are keeping not only employees in the state of California safe, but those that you work with in the event you're a teacher or medical professional.
Amber Clayton:
Unfortunately, and this goes along with one of the series, domestic violence situations sometimes rise to that level of workplace violence, where an estranged spouse may come into the workplace to hurt or kill the employee or to do the same to others. We hear about a lot of workplace violence. We've had a lot of workplace violence issues in the last year. I even had a situation where an estranged spouse, he didn't come into the workplace, but instead he actually killed our employee at their home. It was one of those situations where the employee didn't show up it. He was somebody who's a very good worker, very out of character.
We knew something was wrong. When we did finally find out, it was pretty devastating. The impact that it had on this workplace was, was huge. This person had been employed for many years, highly respected. We had grief counselors come in from the EAP. We provided time off for employees. We handled, of course, all the things that go along with an employee death, the benefit, the wage payments, everything else. When someone, whether it's an employee, a spouse, a customer, makes a threat, at what point should the police be called?
Brittany Nicholls:
Yeah, that's so devastating and I'm so sorry to hear that. We live in a really volatile time. People are unpredictable sometimes. When there are threats in the workplace, employers can use their judgment to determine the severity of the threat or how imminent it truly is. But generally speaking, if there are threats of violence or bringing weapons onto the premises or anything like that, I would say involve law enforcement sooner, the better, right? Get them involved ASAP because they are the ones trained to respond in those situations. That said, employers can also take their own steps to build up an emergency plan, to have measures in place so they know how to respond.
It's important for employers who are creating these emergency plans to really designate one or two people to be in charge of those plans, to be in charge of maintaining them, updating them as needed, training the rest of the workforce on, here's how we handle this type of situation, here's how we handle this type of situation, and keep that pretty routine. I don't know where the rest of you grew up, but I remember growing up in school, we'd always do these tornado drills in school. It became kind of second nature. Kind of getting into that mindset. I don't want to be alarmist by any means, but again, back to that general duty to protect, provide a safe and healthy workplace. This is part of that. Having a contingency plan for various types of issues that can come up in the workplace is really important.
One of the main steps is, to your point, Amber, contacting law enforcement as soon as a serious issue arises that is beyond the scope of what an employer is really trained to handle. Employers should also consider having a workplace that is free of weapons, right? To the extent that an employer can exclude weapons from the workplace, I encourage that. There are some states that have they're kind of known as parking lot rules or parking lot laws. In those states, there is allowance for employees to keep a gun in their locked trunk, for example, or unload it.
The exact specifics vary a little bit from jurisdiction to jurisdiction, but usually where it's allowed, these states say, "Yes, you can have a gun in your parked car on an employer's parking lot or in their parking ramp, but it has to be unloaded or it has to be in a locked case." There's usually some parameters around it. I would encourage employers to be as restrictive as possible when it comes to weapons in the workplace, unless we're talking about like a weapons industry or something kind of niche like that. But otherwise, weapons really don't have a place at work. There are just too many people. There's too much liability. Have that policy in place to set that expectation, to give the employer some more leverage to take disciplinary action should there be a violation.
Janell Stanton:
All of those are really good points. I would just add on to that too, Brittany, that if you have a sort of gun permissive culture in your workplace, we have a lot of hunters in our workplace, or we are in a state where a lot of people have a concealed carry, we want to foster that, we're okay with that, think about your business insurance policy. If something were to happen in your workplace, there may be exclusions from coverage if something were to happen, sort of God forbid. But if there was an incident where an employee used their weapon, even a lawfully possessed weapon, to harm a customer, a vendor, another employee, themselves, your business insurance policy may exclude coverage for those events if you had a permissive policy of allowing guns in the workplace.
Amber Clayton:
I'm glad you mentioned that because we actually had a situation where a member had contacted us because they wanted to give a gun to an employee as a present. I can't remember exactly what it was. I don't know if it was a person leaving the organization or an anniversary, but they were that type of a work culture where guns were acceptable and they wanted to provide that as a gift. It was the first time that I ever heard of an employer gifting an employee with the gun. I thought that was kind of interesting.
Janell Stanton:
Little different, but there are different cultures and some people are very pro gun and that's just something to keep in mind.
Amber Clayton:
Yeah, absolutely. It's very common for employers to conduct background checks on their employees. This s typically conducted by a third party administrator. Some things that employers may not know is that there are state laws regarding the use of arrest and convictions and employment decisions. We get a lot of questions around this. One of the things that we provide to them is the guidance from the Equal Employment Opportunity Commission, the EEOC, that could help employers determine their course of action when they're using the background checks in these employment decisions.
The one thing that I haven't seen addressed in federal or state law is an employer's responsibility when it comes to active warrants that appear on a background check. And that's happened several times with members where they've had something come back and it says there's an active warrant. Is it the responsibility of the third party background check company, the employer, neither, both for reporting that to the police, whether it's a candidate or an employee?
Janell Stanton:
I would say in most instances, the answer to that question is going to be neither. And that's because, for example, background checks can be wrong. We know that in many instances, things can show up for other individuals, especially if there's a common name, or there can also be inaccuracies in background checks. You kind of want to be careful when you think about the background check that you've received back and make an assessment about whether you think that that's accurate. Talk to your employee or the applicant that's been run through that background check process and see what's going on. But there can be some sort of instances where contacting law enforcement to notify them about this individual's whereabouts if there is an active warrant may make sense.
If you're employing somebody, again, to work with a vulnerable population, maybe they're going to be working as a personal care assistant going into client's homes to do nursing care or things like that and they've got a criminal sexual conduct arrest warrant. If there's a tie between the role that you're hiring them for and the potential underlying conduct, like what the arrest warrant was issued for, that may push you, as the employer, into being more likely to contact law enforcement in those situations. But I would really encourage... And to your point, many states are not going to allow an employer to be able to use the fact of an arrest against that particular applicant or employee. That's not the case in all states.
There very well maybe the ability to deny employment to and contact police regarding that underlying conduct and what that conduct is in relation to the role and whether that makes the employee unfit for that position. We've counseled employers through that as well. Hey, this applicant, they've got to active warrant. I don't want to hire them now. Is that something I can exclude them for? And sometimes yes. Sometimes knowing that EEOC guidance, Amber, is super helpful. I refer to it myself. It just has a lot of good guides about how to make that assessment about the role the employee is being hired for, the nature of the underlying conduct, and what would make that employee unfit.
Amber Clayton:
For our listeners, they can search the Green Factors. I believe it's still called the Green Factors that you just mentioned, Janell, so that you can find that information on the EEOC website. If an employer decides to hire someone who's been convicted of a crime and later that employee commits a similar crime in the workplace, is that employer liable? I think that's some of the concerns from employers is the risk that they take in hiring individuals that may have had previous criminal background.
Brittany Nicholls:
Yeah, absolutely, and completely respect that position from employers. They're not always wrong. It's possible. There is a theory, a legal theory, in almost every state and where it's not a specific legal theory, there's something similar under the case law, and it's known as negligent hiring and retention. This basically is what it sounds like, right? It means that while we were negligent when we hired you, we were negligent when we retained you as an employee. When courts analyze this, they're basically assessing whether employers took reasonable care and reasonable steps in selecting candidates for employment and actually retaining employees depending on the specific facts. What is the underlying criminal conduct if there is any?
And what are the specific job duties of this individual? Obviously what Janell was just talking about, background checks, drug screening, those can be some measures that employers put in place to try and avoid negligent hiring and negligent retention claims, or at least to defend against them because they would hopefully discover some underlying criminal conduct and conduct an individualized assessment for that individual. Now, conducting an individualized assessment actually then has dual roles that help protect the employer, right?
An individualized assessment will help the employer ensure they are complying with state and federal laws that require the employer not to just exclude anyone with a criminal background history, because that has adverse implications more so for some minority populations than it does for other demographics. That has really been sort of what the research has shown us. States and the federal government also wants us to, as employers, conduct these individualized assessments to determine how does this criminal background history relate exactly to the actual job duties this person will be performing in their role within the company. The individualized assessment helps there, of course, at the front end for compliance, and it can also help at the back end if there were to be a negligent hiring and retention claim.
Because the employer could say, "Well, look, this person had a DUI maybe on their record, but they're just here in the office doing filing for us. They're not driving for the company. It really has no relation to the role," as an example. That can help protect the employer dually, right, at the front end and also as a defense measure. Employers do want to be careful, of course, if they are going to conduct background checks or drug screening or any type of pre-employment or even during employment exam like that. They want to comply with not only federal law, but state law and local laws. Those can really vary. We've already picked on California, but I mean, it's down to the city there that employers have fair chance initiatives they have to comply with, ban the box laws that they need to comply with.
You definitely want to work with experienced council in setting up a background check program. If there is concern that a candidate or employee based on information that is obtained whether through a background check or otherwise that they can't safely and effectively perform the role that you've hired them to perform, or that they somehow present a risk or a safety threat to the workplace or to the community, then you want to take steps reasonable to mitigate that. The individualized assessment really kind of on either end I think helps there.
Amber Clayton:
Speaking of that individualized assessment, I know that our listeners are probably thinking, where can I get that? Are we talking about a formal individualized assessment, or just assessing what we talked about as far as the EEOC and the Green Factors?
Brittany Nicholls:
Yeah. It's really case by case. It's dependent on the role that an individual is being hired for and the specific history that an employee has and the EEOC guidelines, that's a great starting point. It will have you consider things like exactly what I said, what is the role? What will they be doing on a day-to-day basis? What is the criminal history and how does it relate to that role? Well, how long ago did this history, the criminal conduct, occur? Have there been rehabilitative steps or measures taken such that the employee is or the candidate is kind of working past that conduct? They've paid their dues to society and now they're working towards being a contributing member of society again.
All of those things should be taken into account, and that is in the guidance from the EEOC employers should also though be sure that they check their state and local laws because some will have even more detailed assessment guidance, but that's really kind of the general scope. It's what is the conduct and what is the role and how do the two relate? That's kind of the long story short version.
Amber Clayton:
Exactly. Exactly. Well, Janell and Brittany, it's been a pleasure speaking with you. I know we can't possibly cover every scenario, but the information you provided is so helpful. Hopefully our listeners won't encounter these situations. But if they do, you've armed them, no pun intended, with information to help you make decisions or help the employers make decisions. Of course, employers should also contact legal guidance for additional assistance. Again, if you're a small business, but you don't have legal counsel, check out the SHRM LegalNetwork at shrm.org/legalnetwork. We've come to the end of our show. Thank you again, Janell and Brittany.
Brittany Nicholls:
Thank you.
Janell Stanton:
Thank you.
Amber Clayton:
As a reminder, today we are concluding our miniseries on the technical competency, HR expertise risk management. This podcast is approved to provide recertification PDCs, but only if you listen to the full mini series. After you've listened to each part, you're eligible to enter this activity ID, 22-NF5Z5. That's 22-N F5Z5 for recertification PDCs in your SHRM Certification Portal. And if you haven't already, please subscribe so you'll never miss an episode and be sure to rate and review the show wherever you listen to podcast. Feel free to reach out to me. You could find me on Twitter @shrmaclayton. I'm also on LinkedIn.
And if you'd like to learn more about the Honest HR Podcast, or to get additional information and resources on what was discussed in today's episode, head over to shrm.org/honesthr. And to learn more about other SHRM podcasts, check out shrm.org/podcast. Thanks, again, for joining us on Honest HR. Until next time.
Announcer:
Honest HR is brought to you by Namely. It's so important to keep employees engaged, connected, and informed. Namely is an all in one HR solution everyone on your team will love and use. Designed for small to mid-sized companies, Namely provides a centralized platform to create a seamless employee experience with features like onboarding, open enrollment, performance reviews, and even a newsfeed to stay up to date. Plus, HR professionals love it too. With reporting and analytics, payroll compliance, and more, Namely can save you time and build company culture. Learn more at Namely.com today. And for a limited time, get your first month free when you make the switch. That's Namely.com.