In various cases, appellate courts have established criteria for negligent hiring and training. They further identify issues in the failure or omission to take reasonable mea- sures to reduce these risks. Frequently in plaintiffs’ actions, the loss prevention director and other individual employees involved in the case may be charged personally as defen- dants, in addition to the employer. Even if the loss prevention director is defended by attorneys for the employer, such an individual may need to consult independent counsel to protect his or her own interests. Thus, a lawsuit for negligent hiring can require cor- porate and individual response, involving financial costs and unwanted publicity and misuse of time, which could have been mitigated by the exercise of reasonable vetting measures. The remainder of this chapter will concern such measures.
successful applicants who are screened and offered a position that is accepted. In addi- tion, it is important to take into account whether the worker makes a positive contribu- tion over an extended period of time. The recruitment method that produces the most acceptable applications may be different from the one that produces the most acceptable employees on a long-term basis. Analysis can help identify the most effective recruitment medium for an employer.
FIGURE 3.1 Stages of the security-oriented vetting process.
Security program managers must attract applicants so that they can have a large enough pool to select the best candidates for the position. Apparently higher costs in pro- cessing such applications does not deter management because unsuitable candidates easily may be screened out in the process while expenditures are low. Meanwhile, the open hiring process may attract spectacular candidates who otherwise would be missed.
If a reasonable number of candidates cannot be found, some employers will opt for fill- ing the available positions with temporary workers and relaunch the job search later. If that’s not the case, the comparative study divides the dollar cost of acceptable applica- tions by the number of applications received. This yields a cost per application, which can lead to a ranking of the most productive means of recruiting. While this sample report is concerned with measuring completed applications, other analyses could identify actual hires, or those employees who remain on the job for 90 days or more. Such results may differ from those based only on applications completed.
Employers of security personnel use a number of strategies to attract applicants.
The following are means used for entry-level and supervisory personnel:
• Employer’s own website
• Internet employment sites
• Personnel agencies
• Classified advertisements
• Display advertisements
• Radio or television advertisements
• State employment services
• Incentives to current employees
• Job fairs
• Police benevolent organizations
• College placement services
The Vetting Process 67 Table 3.1 Security Recruitment Productivity Worksheet Comparison
Completed Recruitment Cost per
Recruitment Method Applications Cost Application
Website inquiries ___ $___ $___
Fee-paid web search ___ $___ $___
Classified advertisements
Daily newspaper A ___ $___ $___
Daily newspaper B ___ $___ $___
Sunday newspaper ___ $___ $___
Display advertising ___ $___ $___
E-mail responses ___ $___ $___
Incentives to current employees ___ $___ $___
Job fair attendance ___ $___ $___
Personnel agencies ___ $___ $___
Radio spots ___ $___ $___
TV spots ___ $___ $___
Drop-in recruiting office ___ $___ $___
Other ___ $___ $___
• Military or Veterans Administration employment services
• Association job placement services
• Health club or community center member recruitment
If some types of recruitment sources begin to pale in effectiveness, high- performance managers turn to other means of obtaining needed applicants. Flexibility on management’s part may achieve the desired goal. For example, offering part-time or flex- ible schedules and unusual incentives may draw applicants who might otherwise not con- sider applying for full-time work. Similarly, making prospects feel welcome, valuable, and engrossed in interesting and relevant work—like security—may produce qualified applicants who might otherwise pass on the opportunity to work for the organization.
Employers may find at times that they must aggressively and imaginatively lure individ- uals to apply for the positions they have available.5
In analyzing the effectiveness of different recruitment sources, a manager may later determine that one type of source is better than another. The results may differ according to the type of security assignments involved and the culture of the employer. For example, a study of newly hired marketing representatives found that employees recruited through college recruitment efforts had better initial levels of performance than did those recruited from newspaper advertisements.6 The analytical security executive is likely to identify which recruiting sources are most productive for the short and long term by monitoring performance of different recruiting sources over time.
The potential employer’s website, which should contain available job descriptions and an opportunity to apply over the Internet, will appeal to many applicants and is now a significant recruitment tool. Managers and young job seekers are particularly apt to use the Internet when looking for employment opportunities. Prospective employees may send their résumés, a personal statement, samples of achievements, lists of references, and other pertinent information as attachments to Internet-based job applications. For the employer, this method of obtaining informative submissions is efficient and low cost, and speeds the review process for the application.
Applicants for managerial and executive positions also may be recruited by outside personnel recruiting firms. These share some of the burdens of vetting candidates during their search before they propose candidates to the prospective employer. Management and executive recruiters usually charge the employer a percentage of the successful applicant’s beginning annual compensation; in other cases, a flat fee is charged, regardless of success.
In-Person Prescreening
Anyone who physically presents himself or herself to a personnel office and requests an application for work should be provided one readily, even if no positions are currently available or are likely to be in the foreseeable future. To do otherwise could risk the per- ception of discrimination and subject the organization to a civil action for employment discrimination. However, if no positions are currently available or likely to be in the fore- seeable future, a posted notice or a receptionist may inform potential applicants of this situation. At their option, job-seekers may then complete an application that can be filed for possible future consideration when positions become available.
While such applications may be available on paper, employers increasingly encour- age applications to be submitted electronically. This may be facilitated by workstations in the employment office for applicants’ use.
If positions are available for those with particular skills or requirements, these attributes can be indicated on signage apparent to all visitors at the personnel reception office. Upon the receipt of a completed application from such a candidate, a clerk or manager may conduct a brief interview to provisionally ascertain the facts of the appli- cation and to inform the applicant of the subsequent steps in the employment process.
The brief informal interview also helps establish the communications skills of the appli- cant. However, such brief in-person screening can occur after the application has been completed either electronically or on paper.
The Application
The application is management’s opportunity to obtain the information needed to deter- mine whether the applicant should be considered for further background screening and a possible offer of employment. For most of the past century, applications were com- pleted on paper forms. However, organizations increasingly are enabling applicants to enter information directly into a computer terminal within a personnel office or complete the application on the company’s website. The quantity of information required from the applicant on the employment form differs widely based on the strategy of the employer.
The degrees of detail and the thoroughness of the evaluation process also reflect the employment philosophy of the employer (see Box 3.4). Long applications discourage some applicants from completing the process due to their arduous nature. However, some security and human resources managers believe that a lengthy and detailed application produces stronger applicants who are more likely by extrapolation to be careful and detail-oriented on the job. Clearly, longer applications also provide the workplace with more information with which to make an informed decision on the applicant.
Vetting methods from the application process to the point of finally offering a position of employment involve aspects of privacy as well as questions of fairness and accuracy. A balance between the rights of the applicant and the needs of the employer must be maintained.7 This is particularly true for employers of protection personnel.
The Vetting Process 69
Box 3.4 The Employment Application: How Much Is Enough?
Some employers of security personnel use simple application forms that require directory-type information and little more. Guardsmark, a nationwide security service firm with headquarters in New York City, presents applicants with a 24-page printed booklet that requests a detailed educational, work, and social history. The copyrighted application also includes information on the company’s philosophy and ethics policy. The value of education is also emphasized and a page lists higher educational institutions from which current employees have graduated or attended.
Applicants are informed that they must successfully pass a polygraph examination for which a release is included in the application. A consent to drug and alcohol screening tests and release is also included.
For security-related positions, more information generally is requested of applicants than in other types of employment. Regardless of the length of the application, some min- imum information is required. Directory-type data—current address, phone, and Social Security number (SSN)—are required, as well as work and educational history. The spe- cific questions asked of new prospective employees on applications have been shaped in recent years by various federal laws. The main federal laws affecting pre-employment standards are:
• The Fair Labor Standards Act (FLSA) of 1938 et seq. requires certain employers to pay their workers a minimum hourly wage and to pay time-and-a-half for hours worked more than 40 in a given workweek.
• Title 7, Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, prohibits employment discrimination on the basis of race, color, national origin, sex, and religious practices.
• The Occupational Safety and Health Act (OSHA) of 1970 (29 USC 651 et seq.) created an administration to develop and promulgate occupational safety and health standards, to develop and issue
regulations, to conduct investigations and inspections to determine the status of compliance with safety and health standards and regulations, and to issue citations and propose penalties for noncompliance with safety and health standards and regulations.
• The Rehabilitation Act of 1973 (29 USC 701 et seq.) proscribes discrimination against individuals with disabilities by the federal government, federal contractors, and recipients of federal financial assistance. (See also ADA below.)
• The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRRA) of 1974 (38 USC 4212) requires that employers with federal contracts or subcontracts provide equal opportunity and affirmative action for Vietnam-era veterans and others on active duty.
• The Pregnancy Discrimination Act of 1978 prohibits sex discrimination on the basis of pregnancy by amending Title VII of the Civil Rights Act of 1964.
• Executive Orders 11246, 11375, and revised orders 4 and 14 (Affirmative Action) bar discrimination on the basis of race, color, religion, national origin, or sex in federal employment and in employment by federal contractors and subcontractors.
• Title 42, United States Code, Section 1983 (Civil) guarantees citizens of the United States or other persons within its jurisdiction from the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws.
• Title 18, United States Code, Section 242 (Criminal) protects citizens and others from discrimination by reason of color or race and allows for criminal penalties against offenders.
• The Fair Credit Reporting Act (FCRA) of 1971, as amended, restricts certain credit information about individuals. Some states have enacted even more restrictive legislation than the federal act. (By contrast, credit information about businesses is not restricted and is available to
anyone willing to pay for it from commercial services.) A credit report contains two parts—a credit header and a credit history. A credit header is frequently important for employment purposes as it provides the SSN, age, phone number, recent addresses, and any known aliases.
Credit header information—or full reports—may be obtained only after receiving written permission from the individual involved.
• The Immigration Reform and Control Act (IRCA) of 1986 requires that employers verify the eligibility of each employee to work by completing INS Form I-9.
• The Employee Polygraph Protection Act (EPPA) of 1988 prohibits the use of polygraph examination in the private sector, unless excluded by terms of the Act.
• The Americans with Disabilities Act (ADA) of 1990 (42 USC 12101 et seq.) provides broader coverage than the Rehabilitation Act. ADA prohibits employers with 15 or more workers from discriminating against qualified persons based on their disabilities. Some states also have enacted similar state statutes on the basis of disability. It is important to recognize that knowing what constitutes a disability is not always clear and that this can change over time (see Box 3.5).
The Vetting Process 71
Box 3.5 Defining What Is a Disability
The Americans with Disabilities Act (ADA) of 1990 defines a disabled person as some- one who has a physical or mental impairment that substantially limits one or more major life activities, who has a history of physical or mental impairment, or who is regarded as having a physical or mental impairment. The nature of specific disabilities is in a constant flux related to court decisions that modify what employers may or may not exclude in considering the applicant. Sometimes the concerns about excluded positions have led to searching questions for security and human resources managers.
For example, does wearing glasses constitute a disability? May security employers be forced to hire convicted felons because they are in a protected class?
The ADA modifies the hiring process, but guidelines are compatible, nonetheless, with the desire of achieving a competent and effective workforce. The employer must be aware, however, of the ADA’s context. Applicants who are “qualified” and able to perform “essential functions” of a position with or without “reasonable accommoda- tion” may be in a protected status to receive employment consideration. The employer may insist on the following guidelines:
1. The disabled individual must satisfy the prerequisite of the established position. Certain levels of experience and education typically are permitted prerequisites.
2. The individual must be able to perform essential job functions with or without reasonable accommodation. A key factor is whether a particular job function is essential. For example,
Existing measures may be further strengthened by subsequent modifications in rules and regulations. Also, state measures may expand upon federal coverage. As a result of these proscriptives, application forms are limited in what they may or may not ask. Such limitations may change at any time based on new rulings in case law and passage of fed- eral and state legislation. These have evolved to make employers more attuned to nuances of questions that could prevent denial of opportunities to a spectrum of the population that has experienced employment discrimination in the past.
The employer has a legal obligation to verify essential information in the applica- tion, particularly for security-related positions. This is a vital process because applicants may deliberately or inadvertently provide incorrect or misleading information in their applications and resumes. Verification of references and other relevant information should be completed substantially or fully before a formal interview is scheduled.
References
Most applications request references of applicants. Generally, these may be of two types:
employment-related or personal. Of the two, employment-related are more significant in that they relate to workplace attitude and proficiency. Personal references tend to be biased and are usually not job-oriented; therefore, most employers place emphasis on job-related sources for information about the applicant. Some employers request personal references but never act upon them. However, government and private sector
a position requiring a security officer to communicate with the public verbally could exclude a candidate who is mute. However, if verbal communication is not an essential job function, the employer might make “reasonable accommodation” by permit- ting a mute employee to communicate by word processing, signs, or symbols or by using a technological device to respond.
3. In terms of defining “reasonable accommodation,” employers only have to provide accommodation if it does not present the organization with “undue hardship.” This is further defined as
“requiring significant difficulty or expense.” The employer is held to ADA standards that are related to size of the corpora- tion, number of employees, and the cost of the accommodation necessary to render the disabled person capable of performing the required work to established standards. That is, the larger the organization, the greater the expectancy is that the employer will be able to absorb the difficulty or expense of adjusting to such accommodations.
Source: L. Greenhouse, “Justices Wrestling with the Definition of Disability: Is It Glasses?
False Teeth?” New York Times, April 28, 1999, p. A26.
positions requiring a high level of integrity in their hires may request character references in addition to those linked to past or present employment. Self-serving personal refer- ences from applicants’ mothers and best friends are not convincing. Employment verifi- cations and confidential references from applicants’ former supervisors, however, carry much weight.
References may be vetted by clerks telephonically, by written requests, or by a com- bination of both. Some organizations turn to investigators or contract services to aid them in their reference checking or turn most of the process over to such organizations.
As noted earlier (Box 3.3), the failure to obtain a single affirmative statement of probity concerning a candidate can lead to a charge of negligence in hiring. This would occur in the event that an employee had a relevant personal history experience capable of negat- ing consideration for employment that was not revealed on the application but that a reasonable effort on the employer’s part would have discovered.
Employment Verification and Continuity
References and employment evaluations from an applicant’s previous direct supervisors are valuable, perhaps critical, to employers in making a decision on whether to hire that person or not. Some employers are reluctant to permit their supervisors and managers to share candid insight on a departed worker’s performance and personal behavior. They fear possible civil suits for slander or liability from workers who may be denied an employment offer based on such negative statements. However, supervisors and man- agers who speak truthfully and without malice about a former worker, even while reveal- ing negative aspects about the worker’s employment history, rarely are targets of litigation that is sustained by the court.
Astute security-conscious employers look carefully for any gaps in employment in the applicant’s work history. These are not necessarily red flags of trouble. Employment gaps may reflect time needed to find new employment after one job has ended, or they may reflect time off for education, training, relaxation, or healthcare. Such a gap also could reflect jail or prison time or other involvement with the criminal justice system.
Careful evaluation should determine why employment gaps have occurred.
In addition to personal and employment references, verification of other informa- tion in the application should be undertaken. Such inquiries generally require the approval and sometimes cooperation of the applicant. Managers should always be aware that information derived from commercial services requires careful evaluation. Errors occur despite best intentions. A decision not to hire someone on the basis of a single neg- ative finding cannot be justified, and is unfair. Commercial services greatly expedite the cost of conducting a comprehensive, relevant, and generally accurate collection of the applicant’s records. However, the employer is able to accomplish the same objectives through collecting information by in-house investigators or personnel staffers checking manuals, directories, and Internet databases.8Such information includes:
• Social Security number (SSN) verification. Congress never intended SSNs to become national identifiers, but they are. Once issued, an SSN is permanent and is only changed under extraordinary circumstances.
A genuine SSN remains one of the most important indicators that the applicant is who he or she says he or she is. Guides to understanding
The Vetting Process 73