Who won this case: Was HR at fault for fight injury
January 26, 2010 by Jim GiulianoPosted in: Behavior, Employment law, In this week's e-newsletter, Latest News & Views, Who won?
When worker attacks another, the victim says HR should have knows about the employee’s violent past. Read the dramatized version of this real-life case and see if you can determine which side won.
The scene:
HR manager Trish Albright slid the paperwork across the table while explaining to Mac Herron, “Just sign where indicated and we can finish up what’s needed for your workers’ compensation claim.”
Mac picked up a pen and began signing as he spoke: “I’m still not happy. That nut-case Steve attacks me on the job for no reason, breaks my arm, and all I get is comp.”
“I can understand how you feel,” Trish replied.
“ Well, then, why didn’t someone here know about his violent history?” Mac shot back. “I heard he got fired from another company for fighting. Isn’t it HR’s job to know about this stuff when someone gets hired?”
No one mentioned it
“That came out after the fight with you,” Trish explained. “When we did a hiring check on Steve, his old employer never mentioned anything like that.”
“And the result is that you let some maniac in here who ends up attacking me,” Mac said loudly.
“We don’t think we reasonably could have done more to find out about Steve’s violent background,” Trish said. “But we are living up to our obligation by paying you comp as a result of the injury.”
“You may think that’s enough, but I don’t,” Mac said. “Let’s see what a lawyer says.”
Mac eventually sued the company for damages over the injury. The company said paying comp was enough to make up for the problem.
Did the company win?
Answer
Yes, the company won.
An appeals court ruled workers’ compensation was a suitable remedy for the injury Mac suffered during the attack by Steve.
Two factors led to the decision:
In many states, employees who receive workers’ compensation for an on-the-job injury can’t turn around and sue the employer for circumstances surrounding the injury unless the employer was grossly negligent.
Trisj had done the usual background checks before hiring Steve, and nothing fishy turned up. Had his violent history become known – and ignored – during the checks, the outcome of the case might have been different.
Not Sherlock Holmes, but …
You know you can only go so far when it comes to doing a background check on job candidates. But the ruling shows if you do uncover something suspicious, you better take action and either determine there’s nothing to the suspicions or there’s enough to deny employment.
Courts don’t necessarily expect HR managers to be Sherlock Holmes and uncover every hidden detail about a candidate’s background. They, however, do expect companies to do reasonable checks and act on anything – such as a history of harassment or violence – that might disqualify the candidate.
Cite: Peterson v. Arlington Hospitality Staffing, Inc.
Tags: harassment, Peterson v. Arlington Hospitality Staffing, violence. workers' comp
February 1st, 2010 at 12:20 pm
As an HR Manager I am limited by law not only as to what I can ask a previous employer but am also limited as to what I can say. Many things that may be in an employees personnel file are considered confidential and in some states, cannot be discussed without the consent of the employee. I would love to get and give a complete background from former employers and to considering employers on prospective hires but unfortunately as HR our hands are often tied.
February 1st, 2010 at 1:09 pm
I have heard that companies will not be held to fault legally if the information they share during an employee reference check is truthful and well documented performance issues. I have also seen articles where an employer knew the past employee had personnel issues but because they were afraid to share more than their title and time worked they ended up being sued for not sharing all that was known when the hire turned bad. Unless I have a signed release of information from a past employee I will only share title and time worked. If I have a signed release then I only share what is specifically asked for. If they do not ask about violent or other dangerous behaviors then I do not share it. This sounds counter productive to the other company but the fear of litigation helps keep my mouth in check.
February 1st, 2010 at 1:54 pm
I believe that you are required to share any information related to incidents involving work place violence perpetrated by the candidate. Failure to do so could result in liability. The employee just went after the wrong person. He should have sued the company that failed to provide the info to the person doing the background check.
February 1st, 2010 at 3:50 pm
What if you find out an employee was arrested for fighting, off the clock. What can/should the company do with this knowledge?
February 2nd, 2010 at 1:22 pm
I’m not sure it applies in all states but I know Texas has the “Safe Harbor Act”. I can technically divulge anything that is in the file as long as the inquiring company has a release signed. However, since we can still be sued even if we would win it’s generally not worth it. I release basic information and do state if an employee is eligible for rehire. We are however mandated by law to disclose any violent incidents. As far as I am aware, this applies to all states. Anyone have more info?
February 8th, 2010 at 5:36 pm
References and many background checks are unfortunately a joke now. Most people are afraid to say anything. Many people now don’t get fired, they resign and sign an agreement stating they won’t sue. So the company avoids a risk of getting sued and lets a sucky employee wander around and get other jobs with normal references. I’ve seen this happen with horrible executives. They keep getting work because nobody dares to say anything.