Pre Employment Screening Articles

Neil Mahmoud had every reason to live. Newly married and on the verge of a career as a computer programmer, the 23-year-old student saw little peril in his job at an Apple Valley convenience store. The job entailed ejecting the occasional troublemaker, of course, and just this July Mahmoud tossed out two young men who tried to rob the place with a pellet gun. But the neighborhood was regarded as supremely safe, and locals were shocked late last month when Mahmoud was found on the shop floor bleeding to death from a gunshot wound. How could such horror invade a tranquil town?
It invaded not because a criminal came to call, but because the store’s owner had recently purchased a gun. The weapon was meant to deter robbers and protect employees, but — as too often is the case — ended up underwriting a tragedy. The person who shot Mahmoud, police have determined, wasn’t an intruder. All evidence suggests that Mahmoud shot himself — accidentally.

The accident may seem a fluke, a rare and unfortunate happenstance hardly worth a second thought. In truth, Mahmoud’s needless death vividly illustrates the folly of counting on guns for safety. Thousands of accidental gun deaths occur in this country every year. The key to reducing the number is clear.

More than a decade ago, a study from the New England Journal of Medicine found that private gun ownership heightens a household’s risk of homicide threefold and raises the likelihood of suicide five times above that of a gun-free household.
In short, having a gun close at hand is generally more dangerous than not having one. Plain logic suggests that this is true not just on the home front but in the workplace as well — and research bears out the speculation. Workplace violence has become an American commonplace, and those who study it insist that blessing the presence of guns on the job can only bring more bloodshed.

As researcher Dean Schaner has argued in a book about employer liability, “It is far more foreseeable that an employee will be injured in a workplace full of guns and an environment reminiscent of the Old West, than one in which weapons are prohibited.”
All tragedies give rise to a flood of “if onlies.” Surely all who cared for Neil Mahmoud are consumed with thoughts about how his life might have been saved. Yet such thoughts should preoccupy not just those mourning this charming young man, but all Minnesotans. This tragedy teaches a lesson to which employers — and all of us — should hold fast: To keep the workplace safe, banish weapons.

Source: http://www.startribune.com/stories/1519/5619483.html

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This initiative which started in early 2002 is the result of a congressional appropriation of $2 million. Congress directed NIOSH “…to develop an intramural and extramural prevention research program that will target all aspects of workplace violence and to coordinate its efforts with the Departments of Justice and Labor.”

In terms of extramural research, five grants totaling approximately $1.8 million were funded in September 2002.

The intramural funding is being used in the following areas:

A Federal Interagency Task Force on Workplace Violence Research and Prevention has been developed and the inaugural meeting was held January 23, 2003. The Task Force was formed to provide a forum for Federal agencies to share information on workplace violence research and prevention efforts as well as opportunities for collaborative efforts.

The NIOSH Initiative also includes an outreach component comprised of stakeholder meetings focused on four different areas of workplace violence(violence in health care settings, violence in retail trade, domestic violence in the workplace, and violence against law enforcement and security professions) to participate in separate meetings that will provide an opportunity for stakeholders who have an interest in workplace violence issues to share information about their organization; identify possible research gaps; and, identify opportunities for collaborative efforts.

Several research efforts are also encompassed under the initiative including analysis of the Workplace Risk Supplement that NIOSH funded as a special supplement to the National Crime Victimization for the period January through June of 2002, a telephone survey of workers treated for work-related assault injuries in a sample of U.S. hospital emergency departments, and planning for a survey of employers with regard to workplace violence policies, training, and related issues to be conducted in collaboration with the Bureau of Labor Statistics.

Survey of Work-Related Assaults Treated in Hospital Emergency Departments
The Consumer Product Safety Commission (CPSC) maintains a database of injuries treated in a nationally representative sample of U.S. hospital emergency departments (EDs) called the national Electronic Injury Surveillance System (NEISS). Data routinely collected through NEISS include a brief narrative description of the injury event and basic demographic information such as intent and mechanism of injury, work-relatedness, principal diagnosis, part of the body affected, location where the injury occurred, involvement of consumer products, and disposition at ED discharge. For assaults, summary data are also being collected in the relationship of the perpetrator to the injured person and the context (i.e., altercation, robbery, sexual assault, etc.). For work-related cases, occupation and industry information is collected.

The current study consists of a telephone interview survey of workers treated in NEISS hospital EDs for injuries sustained during a work-related assault. The data collection will occur over a one year period. The survey includes an extended narrative description of the injury incident as well as items regarding general workplace organization; personal characteristics of the worker; work tasks at the time of the assault; training on workplace violence risk factors and prevention strategies; security measures in place and how they impacted the outcome of the incident; and return to work after the assault. This study will provide critical information for understanding the nature and impact of nonfatal assault among U.S. workers. In combination with data collected from other sources, this information will ultimately contribute to the prevention of violence in the workplace.

The Evaluation of State-Based Approaches to Workplace Violence Prevention
In 2001, there were 639 workplace homicides in the U.S., the lowest number since the Census of Fatal Occupational Injuries began in 1992. It is not clear what factors have influenced this reduction and whether it will be sustained in subsequent years. The National Crime Victimization Survey conducted by the Bureau of Justice Statistics estimated 1.7 million nonfatal workplace victimizations occurred each year from 1993 to 1999, accounting for 18% of all violent crime during the 7-year period.

As the risks for workplace violence have been more completely described and recognized over the last decade, states and other policy-makers have begun to develop statutes, administrative regulations, or technical assistance information for workplace violence prevention. Unfortunately, there have been no rigorous evaluations of the effectiveness of any of the regulatory or other state-based efforts undertaken to date.

NIOSH is conducting an inventory of state-based approaches to workplace violence prevention to serve as a starting point for in-depth evaluations of the various efforts that have been implemented. Preliminary results indicate that there are some states, such as California and Washington, that have mandated requirements for training or other assessment of workplace violence risks, especially in particular high risk settings such as health care or late night retail. Others, such as Michigan, Minnesota, and Connecticut conduct special training programs related to workplace security. Some states (e.g., Indiana, Minnesota, Alaska) have issued general duty clause citations for workplace violence hazards. For the initial evaluation of a state-based effort, NIOSH funded a research contract for a comprehensive process and outcome evaluation of the California requirements in hospitals. A final report on this contract is expected in Fall 2003.

Employer-based Workplace Violence Prevention Survey
The National Institute for Occupational Safety and Health (NIOSH) has been conducting research on workplace violence risk factors and prevention strategies for a number of years using data from NIOSH sources, the Bureau of Labor Statistics (BLS), the Bureau of Justice Statistics, the National Electronic Injury Surveillance System, and others. The vast majority of the knowledge regarding workplace violence is based on information about worker victims of violent incidents, both fatal and nonfatal. Very little information exists regarding policies, training, and other related issues from an employer’s perspective. The employers’ perspective is a critical gap in the current workplace violence prevention effort.

To help fill this gap, The NIOSH and the BLS are conducting a survey of U.S. workplaces to evaluate the employers’ perspectives regarding policies, training, and other related issues on workplace violence prevention, including risk factors associated with workplace violence and prevention strategies. The findings of the survey will allow characterization of how the issue of workplace violence is being addressed in the United States workplaces and may be useful to identify where educational interventions are needed. Additionally, the information obtained through this survey will assist employers, decision makers, trade groups, unions, and government agencies in implementation of more comprehensive workplace violence prevention programs.

For More Information go to: http://www.cdc.gov/niosh/injury/traumaviol_research.html

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According to a recent study up to 30% of all American workers say they have been “bullied” at work.
Many Americans are familiar with sexual and racial harassment, but not generalized workplace bullying,” said study team member Sarah Tracy of Arizona State University. Bullying can lead to higher company costs including increased employee illness, use of sick days, and medical costs, ultimately affecting productivity, she added.

Workplace bullying can include “screaming, cursing, spreading vicious rumors, destroying the target’s property or work product, excessive criticism, and sometimes hitting, slapping, and shoving.” Subtle behaviors, such as silent treatment, disregard of requests and exclusion from meetings, count as bullying.

Who falls prey to the office bully? Surprisingly it is not the grown up version of the awkward kid on the playground. In fact, according to the experts, office bullies go for the people who have the most potential to succeed. Gary Namie is a psychologist who not only studies workplace bullying but who has founded the nonprofit , BullyBusters,which is working to get states to pass anti-bullying workplace legislation.( 10 states have introduced legislation, none has passed a law)

“It’s much different than school-yard bullying,” he says. “This target isn’t the kid with the Coke-bottle glasses.”

Instead, workplace bullies tend to drive out colleagues they view as threats: those who are technically competent, independent, possess good social skills, and have strong ethics (and thus may be whistleblowers).

Targets tend to be reluctant to report bullying, primarily for fear of retribution, but also because they run the risk of being labeled a whiner or a snitch, or losing their job outright if the bully is their superior.

There is little evidence that workplace bullies go on to commit workplace violence. According to the Center for Disease Control’s National Institute for Occupational Safety and Health, co-workers commit fewer than one in 10 acts of workplace violence.

While workplace bullying hasn’t gotten a lot of attention in the U.S, it does seem to be a topic that has been “on the radar”in the UK and Australia for several years. There are several websites devoted to dealing with workplace bullying including Bully Online and Bullying that has posters and lots of information on how to deal with bullies.

How can you tell if you have a bully environment in your office? According to BullyOnline,

If you have a serial bully on the staff they will reveal themselves by their department showing excessive rates of

· staff turnover
· sickness absence
· stress breakdowns
· deaths in service
· ill-health retirements
· early retirements
· uses of disciplinary procedures
· grievances initiated
· suspensions
· dismissals
· uses of private security firms to snoop on employees
· litigation including employment tribunals or legal action against employees
http://funnybusiness.typepad.com/funnybusiness/2006/11/bully_bully_for.html

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Washington, DC - Fewer Americans are dying at work. It’s a long-term trend in workplace safety that the U.S. Centers for Disease Control and Prevention in Atlanta, the nation’s top public-health authority, considers “one of the greatest health achievements in the 20th century.” Today’s workplaces are roughly 40,000 lives a year safer than they were in the 1930s, according to the CDC. By way of comparison, 40,000 U.S. women died of breast cancer last year and 42,000 Americans died on highways. Analysts say the biggest factors in improving workplace safety are:

· The expansion of U.S. service industries, which are relatively safe.
· Tougher worker-safety standards, whether voluntary or imposed under laws such as the 1970 Occupational Safety and Health Act.

· The reduction or export of high-risk mining, metals and manufacturing jobs.

· An increase in the number of working women, whose accident rate is about a tenth that of men.

· A decline in the number of small farms, where worker fatalities always have been high. “The kids didn’t get to use the new $50,000 tractor,” explained Guy Toscano, the retired director of the Census of Fatal Occupational Injuries at the U.S. Bureau of Labor Statistics. “They got the old one without the roll bar and the other safety equipment.”

The latest numbers, released in August, showed that commercial fishing is the most dangerous U.S. job. Logging is second, followed by piloting or navigating planes, working in structural iron and steel on construction sites, and collecting refuse. The safest fields are office work and professions such as law, medicine, accounting and architecture.
Overall, workplace deaths totaled 5,702 for 2005, about 200 shy of the all-time low in 2003.

Three of the four leading causes of workplace fatalities are holding steady: highway deaths, falls and a category called “struck by object.” There’s been progress in the fourth: homicides. Convenience store employees and gas station operators – all of whom work with cash at night, often alone, and in all kinds of neighborhoods – are the main beneficiaries. About 75 percent of workplace killings begin as robberies.

For cabbies, the lifesavers are video cameras and partitions that separate drivers and passengers, according to Lucille Burrascano, a retired New York police detective who’s worked on the cab-violence problem for 25 years. In 1981, she said, cabdriver fatalities in the city totaled 26. This year to date there’s been only one.

For convenience store and gas station workers, one key was better lighting and visibility inside and out, according to workplace-violence consultant Rosemary Erickson, the president of Athena Research Corp. of San Diego, CA, and Sioux Falls, SD. Among her clients: 7-Eleven, Burger King, Wawa Food stores and British Petroleum.

Employees are instructed to cooperate when robbers confront them. Stores also discourage robbers with perimeter fencing that makes it harder to escape, plus drop boxes for cash and big signs noting that the register holds $40 cash or less.

The last strategy, along with many of the others, reflects insights that Erickson gained from interviewing more than 400 adult and teen robbers in Texas prisons. Among her findings was that $50 in cash motivated far more robbers than $40 did.

The BLS reports that workplace homicides in 2005 were down to 564 from a 1994 peak of 1,080. Here are the year-by-year numbers of U.S. workplace homicides from 1992 through 2005:
· 1992 - 1,044
· 1993 - 1,074
· 1994 - 1,080
· 1995 - 1,036
· 1996 - 927
· 1997 - 860
· 1998 - 714
· 1999 - 651
· 2000 - 677
· 2001 - 643
· 2002 - 609
· 2003 - 632
· 2004 - 559
· 2005 - 564

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By W. Barry Nixon,
National Institute for the Prevention of Workplace Violence

New screening tools are becoming available that will help businesses be informed about their employees as it relates to professional licenses, certifications, driving records, criminal convictions, immigration status, etc. Having this information will help firms make better decisions that will mitigate the risk associated with many employment decisions including promotions, transfers, etc. and whether employees continue to qualify for the position they hold. This will be an important weapon in every business’s arsenal as it will help prevent many negligent retention lawsuits.

The good news is that these tools, known as Infinity Screening or Continuous Post-Hire Screening, have been deemed the “next big thing” in background screening. The bad news is that businesses should be aware that implementing an Infinity Screening Program must be given a considerable amount of forethought to address the trail of legal requirements, human resource, and employee relations issues. In addition, firms must carefully consider a myriad of other issues to ensure not only consistent employee practices, but also that decisions are made that are congruent with the firm’s culture and human resource philosophy. To ignore this reality will only lead to future employee relations issues that could have been avoided with forethought and planning.

Why Should Firms Consider Implementing an Infinity Screening Program?

Manage Your Risk
First and foremost, infinity screening presents firms with the opportunity to better manage the risk associated with employees. Too often businesses make faulty assumptions when they hire a new employee. They presume that because the person starts a job with a clean criminal, credit or driving record that this means the person’s record will remain this way. Many firms have learned the hard way that somewhere down the line this same employee who started with a clean record turns in a different direction. Regular background checks are the only way an employer can know of changes in employees’ status that may have a negative impact on the company. Some firms have relied on voluntary reporting, but this has not worked for obvious reasons.

Unfortunately the negative exposure can take the form of fraud, theft of information and property, workplace violence, embezzlement, etc. and can have a significant cost impact on the business. The following illustrates some of the potential impacts:

Employees are responsible for approximately 60% of losses due to fraud, information and property thefts.
U.S. organizations lose an average of 6% of their revenues to all forms of occupational fraud according to the Association of Certified Fraud Examiners. The cost of fraud from such things as employee espionage or identity theft is estimated around $6 billion annually.
The number of workplace violence homicides has actually decreased over the last several years, however, horrific incidents continue to happen and cause tremendous suffering and financial burden on employers. Researchers from the National Institute for Occupational Safety & Health (NIOSH) estimate that the average cost of a workplace homicide is $800,000.
Negligent hiring lawsuits that result in a jury trial cost, on average, over $3 million to employers that lose, while cases settled prior to trial are running around a half million dollars.
Beyond managing risk, the management of a business has a fiduciary responsibility to appropriately manage and protect the assets of the business. It must ultimately determine the company’s appetite or tolerance for risks - those risks it will take and those it will not take in the pursuit of its goals and objectives. Once the level of risk that a firm is willing to accept has been determined it is management’s responsibility to ensure that the company implements an effective and ongoing process to identify risk, define the potential impact and then to activate what is necessary to proactively manage these risks.¹

Infinity screening helps to manage risk because having current information on employees positions you to make proactive decisions versus being caught off guard in a reactionary position. In other words, Post-employment screening allows employers to keep ahead, quantify their risk, know where and in whom their risk lies, and most importantly, it helps with the management of risk. For example, if you have a driver who delivers products to your clients and through an infinity screening process you find out he has been convicted of driving while intoxicated you can make a decision regarding continuing to allow that person to deliver your product. Without this information being brought to your attention you could have faced a situation where the driver has an accident while making a delivery and seriously injures someone. You then find out he is driving on a suspended license and has been convicted of a DUI. This is not a pretty picture or a situation that will make you or your attorney happy since it likely to lead to the company getting sued for negligent retention.

Negligent retention is the legal doctrine that has evolved out of numerous court cases. The underlying premise of negligent retention is that if an employer is aware of a problem or should have been aware of the problem and did not take reasonable actions to address the situation then the employer can be held liable for their employees’ actions. This concept has been applied to a wide array of employment situations. To go back to the delivery driver example identified above, in court, several questions are likely to be raised:

Is it reasonable to expect that the company should have been aware of their employee’s driving record?
Were there reasonable steps that the employer could have taken to have had current information on their employee’s driving record?
If they had been aware of it what action would they have likely taken?
While we cannot speculate on the decision that a jury might make in this type of situation you can clearly see where this line of questioning is leading. We believe that firms can avoid this situation altogether by staying informed about their employees’ records through infinity screening.

Pre-employment screening reduces the risk of a bad hiring decision, post-employment screening reduces the risk to which a company is exposed over the long term. These are the actions that a responsible employer should be aware of in their workforce and may become a new standard for judging if an employer took reasonable steps to provide a safe work environment.

Legal Requirements
Since we have discussed risk it is important to mention the legal issues associated with infinity screening. Most firms are well aware that the primary legal requirement for conducting background screening is defined by the Fair Credit Report Act (FCRA) as amended by FACTA, and this is equally true for infinity screening. FCRA provides the requirements for using Consumer Reporting Agencies, which includes background screening firms, however, if a business does its own background screening using internal staff and does not use a consumer report in any part of their process they do not have to follow the FCRA requirements. Although this may be the case, we strongly encourage businesses to still follow the FCRA requirements to avoid even the appearance of unfairness and also to place themselves in a rock solid position should their process get challenged.

In addition, there are several industries where ongoing screening has become a legal requirement. Medical and healthcare facilities are typically required to make sure that medical licenses and certifications are current and meet established standards. The U.S. Department of Transportation (DOT) oversees drug and alcohol testing programs on mandated employees. The DOT requires employers to conduct a pre-employment drug test and obtain a two-year drug/alcohol test history. Additional regulations set forth by the DOT require employers to monitor their employees on an ongoing basis. DOT employers who fail to conduct this screening are subject to penalty fines. Section 19 of the Federal Deposit Insurance Act prohibits any person who has been convicted of any criminal offense involving dishonesty or breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution, from becoming or continuing as an institution-affiliated party; owning or controlling, directly or indirectly, an insured institution; or otherwise participating in the conduct of the affairs of an insured institution without the prior written consent of the FDIC. Banks and brokerage firms have their guidelines as well.

Important Considerations in Implementing an Infinity Screening Program

A Comprehensive Background Screening Policy
It is very important to set the overall framework for your pre-employment and post-employment screening process in a comprehensive policy that provides clear guidance to all.

Identify Sensitive Jobs
One of the important areas that the policy should address is to classify jobs on the basis of their sensitivity or the risk factor that is associated with a specific job. In this context, risk refers to the risk of an incumbent being able to commit fraud, embezzlement, steal confidential information or property, etc. For example, a Chief Financial Officer who has signature authority for up to $100,000.00 has a greater risk factor than a receptionist who cannot approve any expenditures. This is important because the greater the risk the higher the sensitivity of the job and therefore, the greater the precautions the employer should take, such as regularly checking the CFO’s credit and criminal record. Unfortunately, “very few employers tailor the background information they collect to the requirements of the job,” says Lewis Maltby, president of the nonprofit National Workright Institute.

Outsourced staff and sub-contractors
Aside from permanent employees, companies need to be especially aware of outsourced staff, or sub-contracted companies (e.g. cleaners, guarding companies and all personnel who come onto a company’s premises). As part of service contracts, companies should be insisting on ongoing screening as part of service level agreements. These individuals pose as much a risk as any permanent staff member and very often are even more of a potential threat with unrestricted access to all areas and after-hours servicing. For example, consider the unsupervised access that night cleaning crews have to your facilities.

Discrimination
EEOC guidelines regarding the use of criminal records to not automatically disqualify an individual from consideration without a legitimate business reason for doing so, also apply to current employees as do restrictions on use of arrest records.

Employee Privacy and Monitoring
A policy needs to be very clear regarding not creating an ‘expectancy of privacy’ and openly communicating to employees about how the firm intends to monitor their records in areas to be covered (e.g., criminal records, licensing, etc.) based on the nature of the responsibilities assigned to specific job function and the qualifications for the job.

Employee Consent
Employers must ensure that such checks are done with consent. Ensuring that employees are given proper notice is a very important part of positioning your firm to be able to act at a later date should something go awry with the employees records. It should also be noted that having the traditional statement that ‘omission of information or giving false statements is grounds for termination’ may not be sufficient to address the consent issue.

Notification and Appeal Rights
Employees must be given proper notice, the right to challenge incorrect information, and a reasonable time period to provide correct information. This raises a question that deals with should the employer grant the employee time off to rectify or bring in correct records; with pay or without pay?

Access to Information
Access to information should be tightly controlled for improper viewing, use of information and to avoid ‘tainted’ views of the employee creeping into employment decisions.

When Should You Take Action?

This is probably one of the most challenging issues related to infinity screening – defining when to act on the information that is discovered and what is an appropriate action to take. One option is to put in place a Background Screening Review Committee composed of a Human Resource Manager, Security Manager and Legal Counsel with the charge to oversee decision-making regarding ‘adverse actions’ based on learning about derogatory information. The intent of this committee is to provide an objective body to review the totality of the circumstances surrounding a situation and to apply a consistent framework to how decisions are made.

Infinity screening is an idea whose time has come. Businesses should embrace this opportunity to be able to further manage their risk by being able to identify potential problems in a proactive manner. In addition, having current information in employee records positions a business to be able to make decisions not only to reduce risk, but also to ultimately create a safer workplace. While it is a well known premise that “knowledge is power,” in this case we know that having the right information at the right time can empower businesses to better manage all of their assets to improve overall business performance.

1 “Post-Employment Screening: A Risk Management Tool,” Kristen Halcrow, Employers’ Mutual Protection Services, Johannesburg, South Africa.

- Labour news from UNI global union - for trade unions in a global services economy. -

UNI Commerce affiliated British retail union Usdaw says a new report showing thousands of workplace injuries are caused by physical assaults highlights a worrying epidemic of violence in stores across the United Kingdom.

UNI Commerce affiliated Usdaw is very much in the forefront when it comes to defending shop workers against a rising tide of violence in the stores. John Hannett, the union’s general secretary tells that thousands of UK shop workers have to live in fear, and that 20,000 are physically assaulted every year.
Although it is very much Usdaw that has drawn the attention to this serious problem, violence against people working in commerce is not restricted only to the United Kingdom. UNI-Europa Commerce has therefore raised the issue also in the European social dialogue, where a first discussion took place in June.

At a forthcoming social dialogue session in Brussels on 22 September, the social partners for commerce will introduce joint initiatives on the European level, to help come to grips with the growing tide of retail violence.

The report by AXA Insurance found that a staggering eight per cent of all workplace injuries are caused by workers being attacked by customers or colleagues.

- This report is very welcome as it highlights the grim reality that over 20,000 shopworkers are physically assaulted in their workplaces every year, says Usdaw General Secretary and UNI-Europa Commerce Vice President John Hannett.

- This epidemic of violence is aimed at our members who are only doing their jobs and results in many of them leaving the retail sector because they are so traumatised.

- Our members tell us violence in stores is on the increase which is why we launched our groundbreaking Freedom From Fear campaign working with retailers to tackle this problem store by store across the UK.

- Although the figures are bad just think how terrible it would be if shopworkers didn’t have the courage to say no to violence in their workplaces and if most retailers weren’t committed to making their stores zero tolerance zones for abuse, John Hannett says.

- Our members also have to endure disgusting verbal abuse which is up 35% and we are working hard to remind consumers that they have a responsibility to treat hard working shop staff with respect.

- Thousands of workers across the UK live in fear of violence so this report will highlight to the shopping public the unacceptable extent of violence in shops and that tough measures like ASBOs banning abusive customers from stores will be used to protect our members, he concludes.

NOTE: ASBO stands for Anti Social Behaviour Order which authorities can issue to restrict the possibilities that offences are repeated. Breaking against such orders result in a criminal proceeding being initiated.

http://www.union-network.org/UNICommerce.nsf/0/16591556F2CB67D1C12571DC004376E5?OpenDocument

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Workplace violence is increasing worldwide, reaching epidemic levels in some countries, according to a new publication by the International Labour Organization (ILO).

The global cost of workplace violence is enormous and costing untold millions of dollars in losses in other countries due to causes including absenteeism and sick leave, the study states.

The study also notes that professions once regarded as sheltered from workplace violence such as teaching, social services, library services and health care are being exposed to increasing acts of violence, in both developed and developing countries.

The study, Violence at work, Third edition, was conducted by Vittorio Di Martino, an international expert on stress and workplace violence, and Duncan Chappell, past president of the New South Wales Mental Health Review, Australia, and the Commonwealth Arbitral Tribunal, United Kingdom.

“Bullying, harassment, mobbing and allied behaviors can be just as damaging as outright physical violence,” the authors state. “Today, the instability of many types of jobs places huge pressures on workplaces, and we’re seeing more of these forms of violence.”

In addition, the authors also address growing concerns about terrorism, calling it “one of the new faces of workplace violence — contributing to the already-volatile mix of aggressive acts taking place on the job.”

A 2000 survey of the then-15 member states of the European Union showed that bullying, harassment and intimidation were widespread in the region. In Germany, a 2002 study estimated that more than 800,000 workers were victims of mobbing, i.e. a group of workers targeting an individual for psychological harassment. In Spain, an estimated 22 percent of officials in public administration were victims of mobbing. In France, the number of acts of aggression against French transport workers, including taxicab drivers, rose from 3,051 in 2001 to 3,185 in 2002.

In Japan, the number of cases brought before court counselors totaled 625,572 between April 2002 and March 2003. Of these, 5.1 percent, or almost 32,000, were related to harassment and bullying, whereas, from April to September 2003 there were 51,444 consultations requests, 9.6 percent concerning bullying and harassment.

In developing countries, the most vulnerable workers include women, migrants and children, according to the report. In Malaysia, 11,851 rape and molestation cases at the workplace were reported between 1997 and May 2001. Widespread sexual harassment and abuse were major concerns in South Africa, Ukraine, Kuwait and Hong Kong, China, among others, the report states.

In South Africa, workers in the health care sector bear the brunt of workplace violence, according to the study. Over one 12-month period, a survey showed 9 percent of those employed in the private health sector and up to 17 percent of those in the public sector experienced physical violence.

On a more positive note, the study cited improvements in England, Wales and the United States. In England and Wales, the estimated 849,000 incidents of workplace violence in 2002-2003, including 431,000 physical assaults and 418,000 threats, represented a decline from 1.3 million such incidents cited in a previous survey. In the United States, where homicide is the third leading cause of death at work, the number of workplace murders has declined in recent years, with a similar trend for non-fatal assaults. The report states that women represent approximately 61 percent of all victimized workers because of their concentration in jobs considered high-risk for assault.

Growing awareness of the need to tackle workplace violence has spawned the development of new and effective prevention strategies, ILO states. The study highlights a number of “best practice” examples from local and national governments, enterprises and trade unions from around the world that have successfully implemented “zero tolerance” polices and violence-prevention training programs.

Several countries have now explicitly recognized violence in their national occupational health and safety legislation. Argentina, Belgium, Canada, Finland, France, Poland and Sweden have recently adopted new legislation or amended existing laws and regulations to address violence at work.

The ILO also has adopted a number of fundamental conventions on worker protection and dignity at work. In 2004, the ILO Code of Practice, Workplace violence in services sectors and measures to combat this phenomenon, was published to address the extent and severity of workplace violence in various service sector industries. In addition, the ILO, along with partners at the International Council of Nurses, World Health Organization and Public Services International, have developed framework guidelines to combat workplace violence in the health sector.

For more information, contact ILO at http://www.ilo.org.

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Lisa J. Sotto and Elisabeth M. McCarthy*

Employers must juggle a panoply of privacy issues when it comes to the employee relationship. Beginning with pre-employment background screening through the disposal of employee personal information, employers confront a multitude of privacy issues. The widespread use of technology in the workplace and the ease and speed with which information now flows has only served to further confound employers. In the U.S., there is no omnibus employee privacy law. Instead, employers are faced with a patchwork of privacy laws that are varied and complex. This article focuses on two employer privacy issues: background screening and the disposal of consumer report information.

Background Screening

According to a January 2004 survey by the Society for Human Resource Management, 82% of employers investigate potential employees’ backgrounds. Employers conduct background checks not only to verify applicants’ credentials but also to ensure workplace safety and avoid potentially devastating financial and reputational harms associated with negligent hiring, retention and supervision claims. Employers typically ask “consumer reporting agencies” or CRA’s to assemble and evaluate information about a job applicant’s professional and personal life. Certain jobs, such as those in the banking, child care, health care, airline and trucking industries, require criminal background checks.

The Fair Credit Reporting Act (FCRA) was enacted to promote the accuracy, fairness and privacy of personal information assembled by consumer reporting agencies (CRAs). The FCRA allows CRAs to furnish an entity with consumer reports only where the recipient has a permissible purpose to use the reports. Permissible purposes include use for employment purposes or use in connection with credit or insurance transactions. The FCRA defines a “consumer report” as “any written, oral or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living, which is used or collected in whole or in part for . . . employment purposes.”

Many sources of information used in background checks are public records, including criminal, civil court, bankruptcy, tax lien, professional licensing, workers’ compensation and driving records. The FCRA imposes restrictions on the inclusion of certain public records in background screening reports. For example, for positions with an annual salary of less than $75,000, civil judgments and paid tax liens cannot be reported in a background screening report after seven years, and bankruptcy filings cannot be reported after ten years. In addition, records relating to an individual’s arrest cannot be included in a background check report after seven years. A criminal conviction may be reported indefinitely.

An employee background check may also include an employment report for a job applicant from one or all three of the credit reporting agencies (Equifax, Experian and TransUnion). An employment report contains information regarding an individual’s credit payment history and other credit habits, but does not include the individual’s credit score or date of birth.

In addition, employers may seek to obtain education records. This type of information may include dates of attendance at educational institutions and degrees earned. Employers seeking information from education records, however, may be restricted in gaining access to certain records without authorization from an adult-age student or parent due to restrictions set forth in the Family Educational Rights and Privacy Act.

The FCRA requires employers to certify to the CRAs that the employer (i) is requesting the report for a legitimate purpose (i.e., investigation of a job applicant or existing employee), (ii) provided the subject individual with the requisite notice of the background check, (iii) has obtained written permission from the subject individual to request the background report, (iv) will provide the subject individual with a copy of the report and written notice of his or her rights prior to taking an adverse action based in whole or in part on information contained in the background report, and (v) will use the background report only for employment purposes.

The Fair and Accurate Credit Transactions Act (“FACTA”) amended the FCRA to establish standards for “employee misconduct investigations.” An “employee misconduct investigation” is an employee investigation conducted by a third party that the employer hires if the employer suspects workplace misconduct or non-compliance with federal, state or local laws or regulations, pre-existing written policies of the employer, or rules of a self-regulatory organization. Under FACTA, an employer need not obtain an employee’s consent prior to hiring a third party to investigate suspected employee misconduct. If the employer decides to take an adverse action against the employee subject to such an investigation, however, the employer must give the employee an “adverse action” notice after the adverse action has occurred.

Disposing of Certain Employee Personal Information

In 2004, the FTC issued regulations requiring businesses to properly dispose of consumer report information. The rule, which became effective on June 1, 2005, was designed to help combat identity theft resulting from the improper disposal of information. The Disposal Rule requires companies to take reasonable steps to guard against unauthorized access to or use of consumer report information in connection with its disposal. It applies to any business that maintains or otherwise possesses “consumer information,” which is defined as “any record about an individual, whether in paper, electronic, or other form, that is a consumer report or is derived from a consumer report . . . [or] a compilation of such records.” Because employers frequently rely on consumer reports in connection with employment decisions, employers are affected by the Disposal Rule.

Conclusion

Although there is no overarching U.S. employee privacy law, myriad privacy requirements apply to employers. Employers should exercise caution in collecting, using, disclosing and disposing of employee personal information and should seek to understand all the legal mandates that impact the use of such information.

*Ms. Sotto is a partner in the New York office of Hunton & Williams LLP and heads the firm’s Privacy and Information Management Practice. She also serves as Acting Chair of the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee. Ms. McCarthy is counsel in the New York office of Hunton & Williams LLP and advises clients on privacy and information management issues.

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On April 28, 2006 we once again “remember the dead and fight for the living.” For 21 years now, workers and unions have used this day to honour those who have died, suffered injury or experienced illness due to work-related causes. As we mourn for those who have suffered, we re-affirm our commitment to fight for safe and healthy workplaces.

In 1983, the Canadian Labour Congress declared April 28th as a National Day of Mourning. Eight years later, in 1991, the Canadian government formally recognized the day. Now over 100 countries mark April 28 as a day to mourn for those lost and to renew commitments to improve workplace health and safety.

Workers have the right to go to work and return home each day in the same condition. Too often they don’t.

The International Labour Organization (ILO) found in 2005 that in addition to job-related deaths, each year around the world there are some 268 million non-fatal workplace injuries in which the victims miss at least three days of work. In addition, 160 million workers develop a work-related illness each year. In Ontario, statistics registered 336 deaths in 2005 (108 more fatality claims are waiting for decision) and over 88,000 accepted lost time claims. The fatality numbers do not reflect the true toll taken by occupational diseases, estimated to be as high as 6,000 workers every year. In 2005, there were almost four times as many claims for fatal diseases as there were for traumatic deaths. And the overwhelming majority of the claims pending are for occupational disease.

OPSEU members face danger every day on the job. Working alone, traffic accidents, violence on the job, toxic chemicals, stress, caring for the sick and back-breaking lifting, are just some of the hazards OPSEU members face to keep Ontario running.

This year the members of the Ontario Public Service Employees Union grieve for John Stammers, who died after being struck by a car while on picket duty on March 20, 2006. John was a professor of Accounting at Centennial College in Scarborough. He died while standing up for what he and other OPSEU members believe in—the right to a fair contract.

Another OPSEU workplace was touched by tragedy recently when an Ontario Nurses Association (ONA) member Lori Dupont, a nurse, was murdered on the job this year by a co-worker at Windsor’s Hotel Dieu Grace Hospital.

When a Toronto Transit Commission (TTC) driver was shot and lost the sight in his eye last October 15, 2005, the newspaper headlines screamed about increasing gun violence in Toronto. What about the fact that bus was the driver’s worksite?

Violence on the job is a health and safety issue and needs to be addressed by employers and the laws in Ontario. OPSEU will continue to work with the OFL and other unions to ensure that violence is recognized as a hazard in Ontario and that Ontario’s Ministry of Labour steps up to the plate to force employers to take precautions to protect workers from violence on the job.

In 2005, workers saw some Ministry of Labour initiatives to make their workplaces safer. The Asbestos Regulation was amended to make it more protective for workers. Employers now have to identify all sources of asbestos in the workplace, not just friable asbestos. Every employer in a building that contains any asbestos must have a Joint Health and Safety Committee, regardless of the number of employees, and regardless of whether the employer or employee is in the section of the building that contains asbestos. However, these changes are only stepping stones—our struggle will continue until asbestos is banned altogether and its removal compulsory. We will continue to press to substitute safe alternatives for all toxic chemicals even in the absence of absolute scientific certainty.

Also in 2005, the Ministry of Labour announced that it would implement a “Strains and Sprains” campaign instead of a regulation to address Ontario’s unacceptable repetitive strain injury rate. These debilitating injuries account for almost half of all accepted workers compensation claims in Ontario and cause workers a lifetime of pain. OPSEU will monitor the campaign, participate in developing an “Ergonomic Guideline” for Ontario, and continue to call upon the provincial government to compel—by regulation—employers to address ergonomics in the workplace.

Please join us for a minute of silence at 12 noon to pay tribute to all workers and families who mourn a loved one lost or suffering from illness or injury caused by work. Take a minute to think about John Stammers and Lori Dupont who have lost their lives this past year. Take a minute to think about what you can contribute to the fight for safe and healthy workplaces. Today, as we remember all those who suffer and who have suffered, we declare that we will continue our struggle to prevent deaths, injuries and diseases caused by unsafe workplaces.

Source; http://www.newsocialist.org/index.php?id=810

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By Marcel Bent

On December 14, 2005, Jamaica deposited with the Organisation of American States instruments of ratification for the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belem Do Para”, effectively announcing to the world its agreement to be bound by and to actively uphold the obligations and responsibilities as set out. Thirty days later the convention entered into full force for Jamaica.

The convention defines violence against women as “any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or private sphere”. Article 2 expressly recognises sexual harassment in the workplace, educational institutions, health facilities or any other place, as one form of violence against women.

While the convention does not define “sexual harassment”, the Caricom model legislation on sexual harassment, though directed specifically to employment, education and accommodation, can inform our understanding of the term as acts involving unwelcome sexual advances, unwelcome request for sexual favours or unwelcome conduct of a sexual nature towards another person, where that person reasonably believes that rejection, refusal or objection would cause him or her to suffer disadvantage in connection with the pursuance of any of the above.

There is no legislation in Jamaica which deals specifically with acts constituting sexual harassment. Such victims have little legal recourse but to lay charges of assault and/or battery against the perpetrators, where the acts have resulted in injury or have involved blatant physical aggression. The convention, by generally recognising sexual harassment as a crime of violence, may thus immediately impact on the situation of sexually harassed women in Jamaica.

Under the convention, the Inter-American Commission on Human Rights (IACHR) has competence to consider petitions submitted by any person or group of persons, or any legally recognised non-governmental entity and to recommend suitable redress to victims where necessary. It should be clearly noted, however, that this provision only grants the IACHR authority to consider complaints alleging violations of Article 7 of the convention by the state party.

Article 7 concerns the duty of states to implement domestic policies, programmes and legislation to address all forms of violence against women. Under this article, “each state condemns all forms of violence against women and agrees to pursue by all appropriate means and without delay policies to prevent, punish and eradicate such violence”. Several undertakings are then made by the state, including the following:

. To refrain from engaging in any act or practice of violence against women and to ensure that their authorities, officials, personnel, agents, and institutions act in conformity with this obligation.

. To apply due diligence to prevent, investigate and impose penalties for violence against women.

. To include in their domestic legislation penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures where necessary.

. To adopt legal measures to require the perpetrator to refrain from harassing, intimidating or threatening the woman or using any method that harms or endangers her life or integrity, or damages her property.

. To establish fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures;

. To establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies.

The absence of domestic legislation to punish and prevent incidents of sexual harassment and the failure of the state to institute effective legal procedures and effective access to remedies for victimised Jamaican women presents a prima facie breach of Article 7 of the convention.

Immediately striking is that the state can be held directly responsible for acts constituting sexual harassment where the perpetrators are government agents. Petitions alleging sexual harassment by private individuals or other non-state agents may also give rise to state responsibility, not because of the act itself, but because of the failure of the state to provide legal procedures and access to remedies required under the convention.

Before considering the merits of a petition, the IACHR must first decide whether or not the petition is admissible. Perhaps the most important procedural requirement is that the petitioner must have exhausted all domestic remedies. This requirement poses little difficulty to the admissibility of petitions against the Jamaican state, however, since it is not applicable where “the domestic legislation of the state does not afford due process of law for protection of the allegedly violated right, or, the party alleging violation has been denied access to remedies under domestic law….”

While the present convention may afford one possibility to bridge the gap existing in our legal system with regard to sexual harassment, it does not bode well for the Jamaican state to have the convention or its complaint mechanism remain as the principal and primary arbiter in this respect. Aside from the obvious reason that a state should be the first to recognise and legally protect its citizens from all forms of abuse, other compelling reasons for this include the fact that:

. Violations of Article 7 are made the only remediable breach under the convention, clearly indicating that the convention strongly encourages the implementation of domestic legislation which will deal comprehensively with the various forms of violence against women.

. The requirement for the exhaustion of local remedies is a procedural requirement designed to allow the local machinery to run its course, thus permitting the majority of matters to be settled at the domestic level. Repeated petitions of the same nature, having almost mechanical admissibility, will create a negative pattern against the state, imply tolerance by the state of violence against women, bring unwanted international scrutiny and further affect an already tarnished human rights image.

. Unless legislation is implemented to allow private organisations and individuals to face the possibility of direct sanctions at the local level, the state alone will have to bear the financial responsibility to compensate or implement whatever remedies are recommended to the victims by the IACHR. Furthermore, extending the threat of sanctions to non-state entities may also act as an effective deterrent to private individuals and organisations.

. The present convention contemplates only acts against women. Local legislation would have the possibility to be non-gender specific.

No doubt the state apparatus is fully aware of the ramifications of the convention. Nonetheless, it must be emphasised that urgent attention should be given to any lacunae existing between the convention and the laws of Jamaica. Furthermore, the state, by immediately implementing and enforcing policies and legislation dealing with sexual harassment, can easily avoid detrimental consequences while, at the same time, meaningfully reinforce its stated intention under the convention, to seek to eradicate all forms of violence from the lives of Jamaican women.

The convention can be accessed at http://www.cidh.org/women/convention.htm and the Statute and Rules of Procedure of the IACHR at http://www.cidh.oas.org/basic.htm.

Marcel Bent is a Jamaican attorney, specialising in the International Protection of Human Rights.
marcelbent@yahoo.com

Source: http://www.jamaicaobserver.com/columns/html/20060421T200000-0500_103038_OBS_SEXUAL_HARASSMENT_AND_THE__CONVENTION_OF_BELEM_DO_PARA_.asp

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