Six Proven Tactics To Help Avoid The "Ticking Time Bomb" Employee

by Fisher Phillips
Contact

Each new headline in the news describing the latest workplace violence tragedy reminds managers and human resources executives of their tremendous responsibilities in attempting to help prevent such senseless acts.

These reports also underscore a chilling new vision of the workplace, founded on the premise that some degree of violence may be random, and therefore unpredictable. But even though such acts can be hard to predict and no preventative step is foolproof, HR and other managers can indeed take effective steps to help safeguard their workplaces from the next “ticking time bomb” employee.

The “ticking time bomb” employee might lead to dissatisfied patients and customers, unhappy co-workers, costly litigation, workplace violence, or in some cases, all of the above. Whatever form an explosion takes, its effects can be devastating. So, as usual, prevention represents the best protection. 

Simple Steps Can Save Substantial Grief
In the vast majority of cases, employees who visit misery upon a workplace share some common characteristics. Through effective training and screening, you can identify a large percentage of high-risk applicants and legally avoid hiring them. This process obviously begins early, but it continues throughout an employee’s tenure. As discussed below, six simple steps and fundamental practices can help avoid considerable pain.       

1. Don’t Hire The ‘Walking Lawsuit’
The first phase of this framework can best be described as: “don’t hire the walking lawsuit.” Troubled workers share characteristics that you can often identify. Therefore, begin the screening by insisting that every applicant complete an application form, with no exceptions.  

Even if the candidate attaches a résumé, you should insist that your company’s form application be thoroughly completed. That means responding legibly to every question. You should not accept a response of “see résumé.” If an applicant does not follow instructions at this phase of the process, how likely will the applicant perform at your standards after six months of employment?

After obtaining the completed application, read it…carefully. This self-evident step too often receives short shrift. After problems arise, it is surprising how often predictors of troublesome behavior were dangled in front of the employer – but ignored – on the application form. 

You should carefully evaluate the candidate’s education and especially work history. Focus on dates of employment and reasons for leaving prior jobs, particularly when the explanations seem vague. Do not hesitate to ask for explanations of the oft-cited but important “gaps” in employment dates.

Explanations may be perfectly legitimate or they may reveal problems or inconsistencies. Pay attention to the applicant’s body language and mannerisms when dealing with these questions. If a problem exists, this represents a perfect opportunity to identify it.

2. Screen Applicants Thoroughly
Next, do not be afraid to ask about an applicant’s criminal history, if relevant to the job.  In many cases, it will be. Of course, make sure to explain that a conviction will not necessarily exclude an applicant from consideration, and perform the appropriate factual analysis as it relates to the job in question.

You should also conduct background checks to verify information that the applicant provides, ensuring you comply with the Fair Credit Reporting Act where applicable. Seek explanations for discrepancies.

Consider having more than one person interview applicants and ask questions that will reveal how the applicants view their prior work experiences and employers. What did they like best about their last job and last supervisor? What did they like least, and why? Which policies of their previous employers did they disagree with? Be alert for “victim-like” responses and keep in mind that the applicants’ responses are often an accurate predictor of what they are likely to say about their next employer – which could be you.

Unless there is a specific reason to take another approach, you should require candidates to submit to drug tests before finalizing your hiring decision. Make sure your drug-testing policy is up-to-date and in compliance with all applicable laws. Keep in mind that drug-abusers are more likely to seek employment at companies that do not test applicants or employees. 

3. Affirmatively Welcome And Support New Employees
When employment begins, continue a programmatic approach to supporting the success of new employees. Assign a mentor, make job expectations clear, provide feedback (both good and bad), and do not ignore signs of problems. Among adult employees, troublesome conduct rarely improves on its own.

You should also consider conducting at least for-cause drug-testing among all employees when reasonable suspicion is aroused, and assess whether random testing will help support your company’s goals. You should offer an employee assistance program (EAP) to help those who test positive or who may be facing other life challenges.

Adopt a zero-tolerance policy for workplace violence, which encompasses threats and even so-called “jokes” about violence or weapons. Jokes about violence have no place in today’s workplace. 

Perhaps most importantly, you should enforce your performance expectations in a constructive way. It is important to recognize that employees do not respond well to surprises, so setting expectations and consistently enforcing them goes a long way toward supporting a productive and safe workplace culture.

If clear expectations exist from the beginning of an employee’s tenure with your workforce, it improves everyone’s chances of success. You should also establish an anonymous hotline that employees can use to report concerns of misconduct or policy violations, if they do not feel comfortable expressing their concerns directly to HR or other leaders.   

4. Prepare To Deal With Potential Problems
Inevitably, problems will develop, so it is best to be proactive and begin planning for trouble now. You should provide training for every employee during orientation and again periodically throughout their service with you, in the form of live training sessions, computerized-based learning modules, postings on bulletin boards and the company intranet, and regularly published newsletters. 

During these sessions, remind your employees of company security policies and procedures. You might also consider conducting mock emergency or disaster drills, so that everyone knows what to do in the event of an emergency. Ensure that company leaders demonstrate that they take workplace safety seriously. 

You should confirm your employees know their role and responsibilities in maintaining a harassment and violence-free workplace, which includes following established procedures regarding confidentiality and security. You should convey and support the premise that the company will not tolerate retaliation against anyone who reports a concern of discrimination, harassment, improper conduct, or threat of violence.

Make it plain in your written policies and training sessions that the company would rather err on the side of caution, fair play, and safety than to ignore warning signs of possible problems.

5. Handle All Terminations With Dignity And Respect
When employees leave, do everything reasonably possible to ensure that they exit with dignity, even in the case of involuntary terminations for misconduct. Treat departing employees the way you would want to be treated in such a situation. Make sure you offer the employee your undivided attention during the termination meeting, and ensure that you are in a private setting where you will not be interrupted.

Think through all aspects of the termination ahead of time, including what time of day you will conduct the meeting to spare embarrassment and best protect company interests. Finally, you should conduct exit interviews where practical to gather information about the workplace, using the feedback to improve processes or address troubling situations.

6. Control Responses To Inquiries About Former Employees
Once departed, you should ensure that only authorized persons in the HR department respond to requests for employment verification and/or references about your former employees. Think through and carefully plan, within the confines of company policy, precisely what information to provide in response to the inevitable inquiries. 

During this process, keep in mind not only state laws that relate to the good faith provision of employment references, but also laws regarding defamation and negligent referral. In many cases, you may conclude that providing only dates of employment, job title, and last rate of pay (sometimes referred to as “name, rank, and serial number”) may be the most prudent way to respond to reference requests. 

This is because the concept of negligent referral, for example, can mean that once a former employer provides more than this basic information, doing so may trigger a duty to provide information about any dangerous propensities about which the employer is aware. In other words, if you reveal that a former employee was terminated for a policy violation, you may have a legal duty to disclose the alleged violent conduct that was the underlying reason for the termination. 

Unfortunately, some warning signs that seem glaring in retrospect might seem subjective in the eyes of the former employer when they are responding to a reference request. Thus, HR professionals still often find themselves in a legal minefield, where the former employer’s safest approach is to provide the barest of information to prospective future employers.

The foregoing reality illustrates why all other steps described above are so important. Even though reference checks and employment verifications are important tools, prospective employers cannot rely on them exclusively, as they may not reveal the full totality of information you would want to have when making a hiring decision.

It All Adds Up To A Safer Workplace
In the end, some bad apples will probably still be hired, and some will have to be terminated. But all of the tools referenced above will help you manage these situations more effectively and protect you after the termination. 

When a separation is especially difficult or emotional, you should err on the side of prevention while protecting the departing employee’s dignity and confidentiality as much as possible. As always, the first priority should be workplace security. This may include employing extra security for a period of time after the separation, depending upon the facts and circumstances.   

While no set of safeguards can guarantee a workplace that is entirely free from threats posed by disgruntled employees, the foregoing practices can reduce risks considerably and ensure that the workplace is well-prepared if and when an incident occurs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.