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.  

The Twilight Zone of Employment Law - Part 1

The Twilight Zone of Employment Law – Part 1

By Paul LeGrand

In what instantly became a national news story, disgruntled jihadist Alton Alexander Nolan, a production line worker at a food processing plant in Moore, Oklahoma, allegedly murdered 54 year old grandma Coleen Hufford in an ISIS style beheading. Once the attack started, Vaughan Foods’ company exec Mark Vaughan, who is also Reserve Sheriff’s Deputy with the Oklahoma County Sheriff’s Department, immediately came to the rescue. Though it was too late to save Colleen Hufford, whose head was completely severed, Vaughan immediately took down Nolan with multiple gunshots as Nolan stabbed and was attempting to behead another Vaughan Foods employee, Traci Johnson. Without a doubt, Mark Vaughan’s skill at arms and his quick decision to use lethal force saved the life of Traci Johnson and countless others.

The public and the law enforcement community both praised Deputy Vaughan for his quick and decisive action, but as much as Mark Vaughan may have been a hero, the “it could have been a lot worse” defense won’t be particularly useful in the event that Johnson, et. al. v. Vaughan Foods, gets filed in Oklahoma’s civil court system. Heroism notwithstanding, Mark Vaughan and the owners of Vaughan Foods are about to enter the Twilight Zone of employment law, negligent hiring claims.

Meet the infamous Alton Alexander Nolan, age 30. Was he a jihadist lone wolf terrorist who promoted Islam and disparaged non-Muslims, or a production worker who acted out in a moment of rage after being suspended? Whether they classify him as a terrorist or not, I’ll venture to say that it’s highly likely prosecutors will seek the death penalty. It’s also highly likely that his capital murder defense team will urge Nolan to cop a plea in order to serve life without parole. So much for the criminal side. Criminally, the guy’s probably toast. 

In the employment law civil actions which are likely to follow, it’s time to enter the Twilight Zone.  For starters, Nolan will not be the one on trial, Vaughan Foods will.  Whether Nolan’s motive was revenge or religion will have little bearing on the outcome of the civil trial. What will matter is whether Alton Alexander Nolan was Oklahoma Department of Corrections Inmate #534241 before Vaughan Foods hired him[1].  Nolen was released from ODOC custody on 3/23/2013. His priors include Possession of a Controlled Substance with Intent to Distribute, Escape from Detention, and Assault & Battery on a Police Officer.  Bottom line:  Pre-incident indicators of Alton Nolan’s potential for violent behavior arguably exist.  In the event Vaughan Foods gets sued, the potential causes of action against Vaughan Foods include negligent hiring, negligent retention, negligent supervision and/or negligent entrustment. Each of these is a different, specific allegation.  In some of these areas, Vaughan Foods may have a pretty good defense, but not all of them. 

An attorney bringing a civil case against Vaughan Foods will no doubt claim that his client(s) would not have been hurt, but for the employer’s actions.  There are two key questions here.  First, did Vaughan Foods exercise reasonable care in hiring Nolan?  Second, as soon as the employer had a complaint that Nolan was acting inappropriately, did they conduct a prompt and thorough investigation, and do they have supporting documentation leading to a determination about his continuing eligibility?

From what we can tell based on the media reports, Alton Nolen was suspended (not terminated) just prior to the beheading incident.  He allegedly went home, retrieved a knife, hid it in his boot, and returned to the company, crashing his vehicle into cars in the company lot before going inside.  He attacked Coleen Hufford from behind, cutting across her throat with a sawing motion and severing her head. Nolan then attacked Traci Johnson, the woman who submitted the complaint initiating the investigation.  Allegedly, Nolan made statements advocating the stoning of women.  These kinds of statements create a hostile work environment, so the employer appears to have acted appropriately in suspending Nolan in order to investigate Johnson’s complaint against him.  This decision helps the employer as far as negligent retention and negligent supervision claims are concerned.   The negligent hiring allegation is going to be tougher for Vaughan Foods to defend against.  

Traditional negligent hiring claims typically come about when an employer either 1) fails to screen employees properly, or 2) hires employees who lack the skills needed to perform their work. In the case of Nolan, there is little public information indicating how much Vaughan Foods actually knew about Nolan’s propensity for violence.  Civil courts in the United States have become the little guy’s lotto.  The whole medico-legal food chain involved in personal injury, worker’s compensation, and harassment / discrimination actions is huge compared to almost anywhere else in the world.   U.S. Criminal courts put more people in custody than courts anywhere else in the world.   With 719 inmates per 100,000 population, the U.S. has the world’s highest incarceration rate. Germany, by comparison, has 80.  Combine these civil and criminal statistics and there’s a huge social problem that spills over into employment practices.

Imagine a society where your life is determined by what kindergarten you get into.  If companies all did exhaustive background checks, and had a zero tolerance policy for criminality, it would lead to a society where all people convicted of offenses become totally unemployable.  While we don’t know whether Vaughan Foods did a background investigation of Alton Nolan before they hired them, we do know that in the real world, employers need to hire people quickly and cost effectively. With jobs like production line work where opportunities for theft are minimal, contact with the public is limited, and labor rates are very competitive, it can be very difficult for employers to decide “where to set the bar” when it comes to backgrounds.  There are a lot of business owners out there who are looking to give people a hand up, not a hand out. In the United States, one in four adults has a criminal of some kind record.  That’s 92.3 million of us.[2]  A quarter of the labor force would be gone if true “zero tolerance” was the standard.

Did Vaughan Foods have knowledge of Nolan’s propensity to commit harm in advance?  Did Alton Nolan complete a background investigation form? Did they check any of his references?  Did Nolan falsify information to conceal his criminal past?  These will be key questions in a civil case.  There will certainly be others.  In Oklahoma, an employer is liable for a wrongful act of its employee if the employee commits the act while working within the scope of his or her employment. Clearly, Alton Nolan did not commit the attack during the course of his employment, and little argument could be made that beheading co-workers was within the scope of his employment. Ultimately, however, the person truly responsible for the act will have no ability to pay, and Vaughan Foods’ insurance carriers will find settling this case, perhaps even for policy limits, will be a more cost effective strategy than putting the matter before a jury when opposing counsel can put a victim of an attempted beheading, who was traumatized by an actual beheading a few feet away, on the witness stand.

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[1] Oklahoma Department of Corrections inmate information http://docapp065p.doc.state.ok.us/servlet/page?_pageid=394&_dad=portal30&_schema=PORTAL30&doc_num=634241&offender_book_id=391688&imageindex=1

[2] Bureau of Justice Statistics, 2008

A really fun speaking engagement

Yesterday morning we were blessed with the opportunity to give a really fun presentation.  While we do many speaking engagements in the Conejo Valley and surrounding areas, we typically are sharing our specific expertise on subjects like pre-employment screening, where there are hundreds of little regulatory nuances, or evidence photography, where it is important to be consistent with your protocols and document everything perfectly. When we got the invite to speak at University Village, a very elite country club style retirement living complex, we jumped at the change.

We always put a lot of prep work into our speaking engagements. When we first started planning our presentation, we were thinking about how retirees might need investigative services.  The people who invited us had recently had a speaker cover the topic of scams, so that was out. We even briefly pondered doing a speech on "how to protect your grandkids when your kid's marriage breaks up."

After a little conversation with their leadership at University Village, it quickly became apparent that we live weird and fascinating professional lives, and what they really wanted was a window on our world.

DIGITAL FOOTPRINTS

(The blue dot above equals 1 million customer's data breached)

Digital Footprints

The other day I heard a talk radio host refer to a guy robbing somebody as “analog crime.” There are bad people after both your hard earned dollars, and your information.  Nobody wants to give in to them, and it seems like we all enjoy the convenience of being online, except when things suddenly go wrong. 

In the world of digital crime, when something does go wrong, it’s likely to show up not in your own backyard, but halfway around the world.  The last time it happened to me, the problem came in the form of a consumer electronics purchase from a Tesco store.  Tesco is a European chain store similar to the USA's Wal-mart. Though the chain does actually own Fresh & Easy, I think the closest Tesco to my house is somewhere in England. 

 

Today’s crook is sophisticated, and we are currently exposed to more financial risk from digital crime than we are from “analog” crime.  By 2017, there will be 1.3 billion online users filing documents, images  and financial records in cloud storage, so there are plenty of opportunities for people to access data.

Keeping your private stuff private helps.  Whether you’re careful, or not,  it is very possible for your information to be stolen from a source you have absolutely no control over, like Visa/MasterCard, your bank, Apple, T-Mobile, or the Veteran’s Administration.   It’s worth taking a good look at your statements for any erroneous charges.

It’s also worthwhile to conduct your life so you don’t put out too much personal information.  Over the course of the last month or two, news stories on people like Edward Snowden and Julian Assange have increased public awareness of programs like the NSA’s PRISM surveillance program, and wholesale collection of Verizon customer’s pin register data.  Clearly the executive branch has a huge interest in  data archiving on a massive scale, and congress is not going to do anything to close those particular floodgates.   For many of us, personal privacy is not that important.  I’m not a particularly private person, and with a litany of past publications, speaking engagements, and op-ed pieces of one kind or another, short of changing my name and dropping off the grid, I really don’t expect to have much privacy.

If you DO value your online privacy.  Here are a couple of thoughts

1.    Online banking provides less privacy than paper banking.

2.    Encryption is quick, cheap, and easy.  It also makes you look like a suspect if it is found in certain places, but a thumbdrive is probably OK.

3.    Thumbdrives move data between machines more securely than dropbox or email.

4.    Webmail provides less privacy than using an email client like MS Outlook installed directly on your PC.

5.    Cloud storage provides less privacy than your hard drive.

6.    Web photo aps like flickr and instagram make tracking your photos a breeze! For everybody!

7.    Cloud based word processors like GoogleDocs provide less privacy than locally stored word processors like MS Word.

8.    There’s more snooping than the general public realizes.

9.    Anti-spyware programs work against the majority of the threats to your HDD and your phone.

10. Some things, like your retirement fund, really don’t need to be accessible at the click of a mouse.

Figure that God, and at least one three letter acronym, are looking over your shoulder, and you’ll probably be OK. 

Our Take On Those "Top 10 Signs He/She Is Cheating" Lists

On Those “Signs Your Spouse Is Cheating” Lists

Back in 1953, Alfred Kinsey found 50% of all married males, and 26% of females had engaged in extramarital sex.  Since then, everybody from Ann Landers to the blogosphere have written lists proclaiming the “signs your spouse is cheating.”  Over the years, we’ve done surveillance and other investigations for a wide variety of clients.  While attorneys, corporate human resource types, and insurance claims examiners all care about the quality of our work product, no client has near the personal involvement of a “domestic” case involving the sixth commandment.

As a field investigator with 10+ years of work in this area, here’s a gut-feeling, seat-of-the-pants, totally unscientific collection of opinions on those lists, from a guy who’s tailed those who’ve been there, done that. 

Let’s start with the obvious. The most simple, straightforward way to find out if your spouse is cheating is to ask them. While you probably don’t want to “pop the question” if you’re about to send a surveillance investigator out after them, many spouses, if given an opportunity to “come clean,” will admit the truth, especially if the adultery involved a relationship, not just an out of town business trip with a couple of orgasms thrown in. It’s rare to find a spouse whose “BS detector” hasn’t gone off once their spouse has become involved in an extramarital relationship.  To be sure, people lie to get sex, lie to avoid getting caught, and lie “just because,” but given the opportunity to come clean, under the right circumstances a decent percentage of marriage partners will admit the truth when asked. When it comes to adultery, a denial may mean maybe, but if they answer “yes” to the adultery question, your infidelity investigation is pretty much done.  The downside of the “come to Jesus meeting” approach is that the next step could be you sleeping alone that night, so if your exit strategy involves the kids going off to college first, you might not want to go this way.

There have been plenty of lists of “signs he’s cheating,” and “signs she’s cheating.”  While “becoming more conscious of their appearance” could mean either a trendy pair of slacks or a push-up bra, a good chunk of the the underlying behavior is gender neutral.  Men and women do behave differently in extramarital affairs, and how they deal with them, but there are probably more common denominators than differences.  While  women and men both cheat, in about 2/3 of divorce proceedings, the wife is the “petitioner,” and the husband is the “respondent,” so I’ll use the male pronoun for most of my top ten list. 

So here’s our field tested (vicariously) read on the common “top ten lists”

10.       They don’t touch you as much, they’re gone longer, and they’re angry and critical: 

            If you’re still providing for your family’s needs, but she’s suddenly significantly more resentful and on edge, you may be facing a situation where she’s involved with someone else. If he changes his patterns and avoids communication with you, that caring is likely going somewhere else.

9.         They go outside or retreat to the other room to make private phone calls:

            Especially if he’s receiving calls in the evening, and excusing himself to return the call after you’ve heard his phone vibrate.  Especially if she’s withdrawing to somewhere she can make outgoing calls undisturbed.

8.         They’ve locked down access to their desktop, laptop, or smartphone.

            Keeping a spouse out of one’s digital data is standard operating procedure for marriage cheats.  If they’ve always been in lockdown mode, this may not mean anything, but if they used to have everything in plain sight, and now you’re seeing a screen saver while they’re in the John, you’ve got a problem. One browser hit to the "life is short, have an affair" site www.ashleymadison.com [1] may not be proof of ejaculation, but it’s proof of intent, and they know it.   

7.         They have hidden email or social media accounts.

            If they’ve locked down their digital data, this is still an area a professional investigator may be able to uncover. While it’s not horrible by itself, it’s a good indicator combined with item #8.

6.         They delete text messages, chat history, and browser history on their smartphone and  social networking accounts.

            Especially if it’s done selectively. If messages to Jennifer go back to when he bought the phone, but messages to Jill from last week went poof, you’ve got a problem.

5.         They spend tons of time with a colleague, co-worker, or friend of the opposite sex.

            While a sex-fueled fling may originate via an online dating site, the relationship’s more likely to come from that temptation he’s known all along. 

4.         You notice a different scent on them.  Men. We’re idiots. We’ll press our cheek up against a woman wearing Chanel #5,  and we honestly don’t realize you’ll figure it out.

3.         They have a “burn phone” in addition to the normal cellular phone they carry. 

            Very bad sign.  Period. The charger is probably easier to find than the second phone, but the message and call logs will be a smoking gun if you somehow manage to find it.

2.         They’ve becomes more conscious of their appearance and fitness. 

            Actually, this is probably one of the stronger indicators.  If he’s got more muscle and less weight, a new hairstyle, and trendy clothes, it could be a mistress, age-consciousness, or simply gearing up to be single again.  If she’s been losing weight and toning up while stuck in a sexless marriage, there a really powerful dynamic building up there too, that’s looking for a release.

1.         They don’t come home at night.

            Seriously. Most of us in the PI business have come across a client whose marriage life is at this point, but they’re still grasping on to the hope of some plausible explanation.  If this is you, don’t be embarrassed, you’re trying to keep hope alive in a bad situation, and that’s an understandable reaction.

[1]Canada based www.ashleymadison.com, with over 20 million subscribers, is the largest website specifically dedicated to extramarital dating.  Considering there are less than 174 million married adults in the U.S. & Canada, this is a truly astounding number.  Even if you assume 3 million subscribers are either singles wanting to date married men & women, or English speakers living overseas, that’s still one marriage partner in ten.