Tuesday, December 2, 2014

The Twilight Zone of Employment Law - Part 2

by Paul LeGrand, CA Licensed Private Investigator

Last month, we looked at the nightmare case of the fatal attack at a Vaughan Foods plant in Oklahoma, where a 54 year old grandmother, Colleen Hufford was murdered by a co-worker named Alton Nolen in an ISIS style beheading. A second employee, Traci Johnson, who was stabbed numerous times, survived her attack thanks to the quick reaction of former CEO Mark Vaughan, a reserve sheriff’s deputy who shot Alton Nolen and rescued Johnson from almost certain death. 
Since the attack, Traci Johnson has been released from the hospital and is recovering.  A high school friend of Traci’s set up a GoFundMe.com page at http://www.gofundme.com/f44exo to raise money to help in her recovery, but that site has only raised a few thousand dollars, a fraction of the actual economic impact Johnson incurred in the aftermath of the incident. No negligent hiring/negligent retention lawsuit appears to have been filed against the employer at this time. 

The suspect in the beheading, Alton Nolen, is now in the Cleveland County Jail after initially being hospitalized for the gunshot wounds incurred during his takedown.  Alton’s social media postings related to Islamist interests and claimed sharia law was coming, and he openly admitted to killing Hufford and injuring Johnson. He remains in custody on a first degree murder charge. His preliminary hearing is scheduled for today. Prosecutors are expected to seek the death penalty.
Whether the Vaughan Foods murderer was a jihadist who idolized terror, or a sociopath who developed a fascination for beheadings, Alton Nolen was clearly a violent man with a prior criminal history.  In 2011, Alton Nolen was sent to prison for assault and battery on a police officer. He was released in 2013 and was still on parole when he was hired to work at Vaughan Foods.  The incident triggering Nolen's 2011 arrest was startlingly violent.  The female Oklahoma Highway Patrol Trooper he overpowered and escaped from stated “He exploded out of his car, hit me in the chest and pushed me back.” Nolan was captured 12 hours later. Looking back at the incident, Trooper Betsy Randolph stated “I wish I’d have killed him.” 

Now let’s shift gears away from troopers and jihadists.  In hindsight, it’s obvious that Alton Nolen was a violent person.  What’s not so obvious is that while employers continue to need employees, they need to meet some important and sometimes conflicting standards when they hire them.
Employers clearly need to avoid hiring candidates that pose a clear risk of harm, but they also need to be very careful not to engage in a pattern of hiring where candidates (or employees) become victims of impermissible discrimination. If statistical data for your company shows disproportionate hiring, it could open the door for class action based claims against it. While large employers have been relatively successful at fighting class action employment lawsuits, that defense is by no means 100% successful.

What constitutes a legal and proper background check can vary greatly from state to state, and even from city to city.  In California, you typically can’t report a criminal conviction from more than seven years ago, a FICO score, or an arrest where the candidate was exonerated. In San Francisco, if you do government contracting, you can’t have a check box for criminal convictions on your employment application.  As a California employer, you can run a credit check on a candidate whose position involves access to confidential or proprietary information, but you can’t run a credit check on a candidate whose position will involve routine access to customer’s personal information while they’re processing credit card applications.  It’s a crazy world, but those are just the cards the modern H.R. Professional is dealt these days.

In Human Resources, the name of the game is often avoiding liability exposure down the road. In order to be fair to your employees, you’ll want to look at what positions your company is offering, then decide, and more importantly, document what level of background investigation is appropriate for the position prior to hiring.  Stick with the same program for all the applicants trying out for that position. Fair is fair.  If you give warehouse workers a “level one” background, and warehouse supervisors a “level two,” and you promote someone from warehouse worker to warehouse supervisor, a new “level two” background check is in order. If you’re smart and organized, your documentation should show you’ve made the effort to keep the playing field level.  

While uniform, appropriate background checks based on position are certainly the best practice, doing consistent checks will soon open the door to another problem, negative adjudication. As always, it is up to the employer to set the bar as to what constitutes a “pass” and what constitutes a “fail” in the background. While there are many nuances to doing this, I can safely say that deciding what to do with a candidate who has a 2011 felony conviction and state prison time for assault and battery on a police officer is still a “no brainer,” even in the People's Republic of California.