Negligent hiring: Reducing the risk

In recent years, the responsibility of employers to hire people who are not dangerous or violent has been heightened by the tort, negligent hiring. The courts have ruled that certain employers owe a special duty to employees and third parties (e.g., customers or clients) to protect them from the harmful or criminal acts of other employees. This article contrasts negligent hiring to respondent superior and negligent entrustment, describes the components of negligent hiring, and reviews important legal cases. The article also discusses how employers can minimize the risk of negligent hiring through prudent human resource practices.     

The Legal, Ethical, and Managerial Implications of the Neutral Employment Reference Policy

The litigious environment surrounding employers today has caused them to be overly fearful of providing candid yet adverse employment references. Their attempts to minimize litigation risk created by the dismissal of a vindictive employee have clouded their judgment when asked to assist in the dissemination of employee information. This is alarmingly illustrated by the growing number of employers who have blindly adopted a neutral reference policy. Unfortunately, indiscriminate application of this policy will not necessarily preclude litigation, but, rather, foster it. It is imperative that employers carefully weigh the tangible and intangible costs of a reference defamation suit against their duty legally, ethically, and managerially to disclose vital information about a former employee.     

“Damn with faint praise” The legal,practical, and ethical implications of providing and not providing employee references

In the past decade, there has been a multiplicity of lawsuits by employees against former employers based on defamatory references. Many of these lawsuits have proven to be successful and have caused wary employers to use great care in providing references. A number have gone so far as to refuse to provide references at all, instead adopting a “no-comment” policy, often on the advice of legal counsel. This article reviews defamation laws within the context of employee references. Recent cases and trends are analyzed, guidelines to avoid liability are suggested, and a critique of the traditional legal advice of “no-comment” is provided. Finally, business-related and socioethical aspects of the problem are considered.     

Addressing the Growing Inadequacies of the <Emphasis Type="Italic">Ellerth</Emphasis>/<Emphasis Type="Italic">Faragher</Emphasis> Affirmative Defense: Fashioning a Sensible and Feasible Solution

Public policy seeks an equitable balance between the rights and duties of both employers and employees in creating a workplace free of sexual harassment. This goal is particularly difficult to achieve when supervisors create a hostile work environment. The U.S. Supreme Courts decisions in Ellerth and Faragher created an affirmative defense against vicarious liability for employers, but subsequent applications of these rulings have been inconsistent and problematic. Courts and legislators need to (1) choose the appropriate standard of employer liability for sexual harassment committed by supervisors, and (2) decide what, if any, defenses are available to employers when employees bring claims of sexual harassment. We conclude that holding employers strictly liable while allowing for the limitation of damages based on avoidable consequences, as recently adopted by the California Supreme Court in McGinnis, is preferable to other liability standards and defenses.     

Balancing Civil Rights With Safety at Work: Workplace Violence and the ADA

Workplace violence has become an increasingly common occurrence in recent years. During the years 1992–1996, there were over 5,000 job-related homicides in the United States, and in 1996 alone there were 1,364 nonfatal assaults committed by coworkers or former coworkers. Although it would be both inaccurate and inappropriate to suggest that these acts have generally been committed by persons suffering from severe emotional and mental disorders, this is clearly one of the possible explanations. In light of these facts and given the recent Equal Employment Opportunity Commission's Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, the obligations and prerogatives of employers in terms of hiring and posthiring actions need to be discussed. This paper examines the legal issues, the EEOC's Guidance, and offers specific suggestions for developing an effective hiring process, as well as methods to use when dealing with current employees who pose a threat of violence because of mental and emotional disorders.     

Cultural Discrimination: The Reasonable Accommodation of Religion in the Workplace

Reasonable accommodation of religious practices continues to be a problem in the workplace. Recent Supreme Court decisions have enabled employers to exclude employees from the decision-making process of what constitutes a reasonable accommodation of their religious beliefs through the de minimis standard. In this article it is argued that, in most cases, the reason employers have been allowed to discriminate against these employees is the contentious nature of minority religious beliefs with the mainstream religious culture. Because judges view discrimination based on religious beliefs as distinct from the other reasons for discriminatory practices, such as race, sex, or national origin, it appears unlikely that adherents to minority faiths will face any abatement of discrimination in the workplace.     

The Effects of Mandatory Arbitration of Employment Discrimination Claims: Perceptions of Justice and Suggestions for Change

The ability of employers to require employees to submit claims of discrimination to final and binding arbitration in lieu of exercising their statutory rights represents a significant change in public policy. The methods traditionally used by enforcing agencies to investigate discrimination claims provide assistance and intervention that redress power asymmetries between employees and employers. Depriving employees of these enforcement mechanisms and requiring them to use arbitration may have adverse effects on perceptions of justice, both in procedural and distributive terms. We propose that mutuality, equality, and remediality are issues that must be addressed in situations of mandatory arbitration. We also suggest that mandatory arbitration may have other effects including expanding the scope of issues well beyond discrimination claims.     

An Examination of the Factors that Influence Whether Newcomers Protect or Share Secrets of their Former Employers*

abstract This research investigated the factors that influence a decision that is often faced by employees who have made a transition from one organization to another: the decision about whether to protect secrets of their former employer or to share them with their new co‐workers. A total of 111 employees from two high‐tech companies participated in interviews. Their comments were analysed and, based on both relevant literature and the results of that analysis, a theory of the factors that influence newcomers' protect vs. share decisions was developed. According to that theory, newcomers first decide whether or not information is a trade secret of their former employer by considering (1) whether the information is part of their own knowledge, and (2) whether the information is publicly available, general, and negative (about something that did not work). If newcomers decide the information is a trade secret, they then evaluate (1) the degree to which their obligations are biased towards their former or new employer, and (2) the degree to which they identify more strongly with their former or new employer. Newcomers whose obligations and identifications are biased towards a new employer are more likely to share secrets. If these obligations and identifications are balanced, newcomers may share information in a way that allows them to believe they are fulfilling their responsibilities to both their former and their new employers.     

The “I quit” syndrome

Managements, unions, and arbitrators have been plagued by a very simple but long-standing problem involving what might be termed a routine human resource action. The problem stated simply is: When is a quit a quit? Where employees are represented by a bargaining agent, the company cannot always be sure that a “quit is a quit.” It is clear that employers who do not understand the “I quit” syndrome are in an uncertain position with respect to handling such problems. The authors have also discovered that unions do not understand the “I quit” syndrome either and at times go to arbitration with all of its attendant costs when the employee has actually “quit.” The purposes of this article are to study how arbitrators have ruled, to establish the principles involved in this little-known area of union/management relations and to provide parties to such cases with information to guide them. Arbitrators have upheld grievances and reversed company actions often enough that there is a need to clarify what is a “quit” as well as a need to clarify what the rights are of both parties under the collective bargaining agreement. The authors found that many managements use the “I quit” syndrome as a substitute for disciplinary action. It is clear from arbitral decisions that it is best from the company point of view to allow the disciplinary system to handle problem employees. The authors also found that reasonable resignations by employees were upheld by arbitrators. If employers carefully handle and document employee resignations, the resignations will stand. Further, it is clear that employers must issue clear policy statements concerning resignations; this includes avoiding resignations under duress. Finally, parties to collective bargaining agreements need contract language defining a quit.     

Employee attitudes toward drug testing: Effects of individual characteristics and employment setting

Testing for the presence of drug continues to gain popularity as a method for controlling drug use in the workplace. It is important that employers understand how potential applicants and current employees will react to the various types and purposes of drug testing. Employees (n = 529) were interviewed to investigate the role of attitudes toward drugs and work setting characteristics in explaining acceptance or rejection of drug testing. Individuals believing users should be held responsible for becoming dependent on cocaine, who felt the primary cause of cocaine addiction was weak moral character, and those who felt cocaine users should be treated as criminals were more supportive of drug screening and the testing of current employees.     

Work hour congruence: the effect on job satisfaction and absenteeism

This study examines the effect of work hour congruence on employee job satisfaction and absenteeism using a large, longitudinal sample from the Canadian Workplace and Employee Survey (WES). An employee is said to have work hour congruence when they actually work the number of hours that they desire. Results indicate a difference between employees who desire more hours and those who desire fewer hours: employee desire for and receipt of more hours was related to positive changes in job satisfaction, while employee desire for and receipt of fewer hours was related to reduced absenteeism. In addition, the results suggest that employees respond to employers who at least try to meet their needs, those who desired more hours and received some, but not all of these additional hours showed a positive increase in job satisfaction. This study contributes to the literature by using of a precise measure of work hour preference and change, differentiating employees who desire fewer hours from those who desire more and examining both full and partial work hour congruence.     

In Sickness and in Health: Recent Judicial Developments in Americans with Disabilities Act Association Discrimination Cases

A little-known provision of the Americans with Disabilities Act (ADA) prohibits covered employers from taking an adverse employment action against a qualified employee if a determinative factor in the adverse employment action is the disability of an associate or relative of the employee. A review of the reported court opinions indicates that plaintiff employees often encounter difficulty in these cases. Some plaintiffs are unable to prove that they are “qualified” employees at the time of the adverse employment action, and other plaintiffs find it difficult to prove that a determinative factor in the adverse employment action was the disability of the associate or relative. However, plaintiffs have achieved some success as evidenced in the 2008 U.S. Circuit Court of Appeals holdings in Dewitt v. Proctor Hospital and Trujillo v. PacifiCorp. This paper describes reported U. S. Circuit Court of Appeals opinions about ADA association discrimination, its relationship to the Family and Medical Leave Act and Employee Retirement Income Security Act, and the implications for employers, employees, and lawmakers. It also offers practical guidance to both employees and employers for asserting and managing rights and potential liability in this area.     

In Sickness and in Health: Implications for Employers when Bipolar Disorders are Protected Disabilities

This paper explores the potential conflict between employment protections afforded to individuals with bipolar disorder, and employers’ obligations to maintain a safe working environment for others in the workplace. Both the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act of 2008 (ADAA) provide workplace protections to those employees or applicants who are classified as qualified individuals with a disability. A disability is “a substantial impairment—a physical or mental impairment—in a major life activity that would substantially limit that major life activity.” ( 42 U.S.C. §§ 12102(1)(A)-(C)), and “mental impairment” is defined to include individuals with bipolar disorder (42 U.S.C. § 1630.2(h)(2)). These statutes further impose a requirement on employers to make reasonable accommodations for such individuals. In essence, they protect the bipolar employee from any discrimination in the workplace based on their disability, to include harassment by coworkers. However, employers may find themselves caught on the horns of a dilemma. Depending on the nature and severity of the bipolar employee’s conduct toward coworkers, they may also be exposed to liability for harm done to coworkers under negligent retention laws, or even the anti-harassment provisions of other equal employment statutes. If a bipolar employee’s negative behaviors toward coworkers are sufficiently severe or pervasive, they can result in coworkers suffering harassment sufficient to constitute actionable conduct under the ADA. To reduce exposure to litigation, employers must understand both their obligations under the ADA, and the nature of bipolar disorder.     

Expected Practices in Background Checking: Review of the Human Resource Management Literature

In recent years we have seen a growing attention to the issue of background checks. Research on pre-employment inquires suggests that job candidates engage in extensive misrepresentation of academic and work credentials listed on resumes and job applications. An employer who fails to perform a thorough background check on a prospective employee may be vulnerable to the charges of negligent hiring or employment discrimination. Based on a review of the scientific and professional literature in human resource management, we defined expected management practices in background checking including the need to understand the job requirements, methods of background checks, the extensiveness of the background checks, the role of the application forms, and the use of interviews. Recent legal cases are also included to illustrate what practices are or are not defensible.

Labor market reputation and the value of the firm

This study examines the stock market reaction to announcements that should contribute to the positive reputation of firms' human resource management practices. Announcements consist of the annual release of the list of 'best' employers by Working Mother magazine. We hypothesize that these announcements positively contribute to the firms' labor market reputation, thereby improving a firm's ability to attract, retain and motivate good employees. We find a small but statistically significant increase in firms' stock prices following the release of the list. The effect is larger, the first time a firm appears on the list relative to subsequent appearances.     

Office Romances: The New Battleground Over Employees' Rights to Privacy and the Employers' Right to Intervene

Office romances have increased dramatically as more men and women work together for prolonged periods. The article reviews reasons why office romances are flourishing, examines the corporate response to office romances, discusses the rights and responsibilities of employees, co-workers, and employers, and recommends courses of action for each.     

THE LIMITS TO EMPLOYEE INVOLVEMENT: PROFIT SHARING AND DISCLOSURE OF INFORMATION

This article seeks to exsplore the ways in which profit sharing is used by employers as a means of securing more employoee involvement. Although this is the main reason employeras have gilven for introducing profit sharing, and has been a principal objective of the government's recent initiative over profitrelated pay, the evidence suggests that little so far has been achieved. By examining employers’deeep seated concerns about some of the implications of profit sharing, particularly those that involve disclosure of information, this article argues that employers are reluctant to pursue such a strategy of involvement because of the risk of stimulating employees to demand greater influence in how the enterprise is managed. This prompts a consideration of the conceptual ambiguity surrounding the notion of employee involvement, and the article concludes that the contradicatory implications this entails for employers renders it largely impotent except at the level of rhetoric     

Managing an Externalised Workforce: Freelance Labour-use in the UK Book Publishing Industry

Editorial departments in the UK book publishing sector have shrunk considerably recently and many former in–house employees have transferred to home–based, self–employed (freelance) status, often still working for their former employers. The results of interviews with in–house managers of externally–based freelancers are presented here, along with a model of segmented labour markets.     

Managing the Contingent Workforce—Gaining the Advantages, Avoiding the Pitfalls

Part-time employment arrangements constitute a rapidly growing segment of the U.S. labor force. Such employment arrangements offer advantages to both employers and employees. Part-time employees offer employers reduced wage and benefit costs, workforce flexibility, aid for special projects, replacement fill-ins and a chance to preview candidates for full-time employment. Part-time work enables employees to supplement family income, enjoy flexible hours as well as a change in job environment and a chance to substitute for full-time employment when there is no choice. The advantages of contingent employment come at a cost. Employers must comply with laws and give up control over much of the employment relationship in order to avoid co-employment status and to gain the benefits of contingent employment. Employees in contingent work arrangements frequently do not qualify for many of the benefits available to full time employees. Suggestions made for managing contingent workers may reduce some of the problems, but they would also remove some of the advantages.     

The relationship between employee knowledge,personal contact and attitudes towards chronically ill co-employees within the banking sector

As chronic illnesses continue to be a burden in today's organisations, it remains a very crucial call for management to find ways to eradicate the associated organisational problems. While people of all ages are affected by chronic illnesses, there is a higher risk of the elderly developing chronic diseases. However, as much as chronic illnesses are inevitable among employees, there should be ways at least to curb negative social and goal achievement impact which they bring in organisations. In this regard, a survey was conducted to examine the relationship between employees' knowledge about, contact with and attitudes towards their co-employees with chronic illnesses within the banking sector. This is not a well-researched area from an International Journal of Human Resource Management (IJHRM) view and this work could make a useful additive contribution. Results indicated that employees' knowledge about and contact with individuals diagnosed with chronic illnesses were significantly related to better attitudes towards this population. The findings also revealed that knowledge was related to positive attitudes among employees who had more personal contact with individuals with chronic illnesses and such findings indicate the importance of exposing employees to information about chronic illnesses and direct practice experience with individuals who have these illnesses. Managerial implications for employees with chronic illness are discussed.