Fairness Needed In Work Terror Policies
Risk managers concerned about balancing privacy, discrimination and terrorism risks in the workplace may do well to remember the golden rule, according to experts.
“From a risk manager's standpoint, you need the balance between adhering to the law and doing what any human being would want done to them,” said Richard Betterley, president, Betterley Risk Consultants Inc. in Sterling, Mass. “There are plenty of folks who may resemble terrorists, but are harmless.”
He added that “if you can show the average person that you tried to do the appropriate thing, then you're more likely than not to come away unscathed.”
Unfortunately, he said, one person's “right thing” is another's “how could you have done that?” To avoid mistakes in judgment, having a plan in place is important. This includes making sure a plan is reviewed by someone else before being carried out.
“The snap-judgment emotional reaction is always a dangerous one, particularly when people are scared, which is what will happen with terrorism,” he said.
When dealing with any situation, his rule-of-thumb is, “How would this look in the Boston Globe or how would this look in The New York Times?”
When it comes to balancing terrorism risks and employee relations, “many of the things risk managers should be doing” are things they should be doing anyway, Mr. Betterley said. The processes and procedures that should be in place for workplace violence, he said, are most likely “the template for what you should do when it comes to terrorism.”
A staple in any kind of risk management program is now background investigations for all employees “who will have intimate contact with customers,” said Frank H. Henry, a partner in the Miami office of Baker and McKenzie.
Background investigations, he said, have become more important now than they were six months ago. “You would certainly like to know if any of your employees have been convicted of violent crimes in the last three years.”
Barry Burns is president of a consulting firm, Outsourcing Solutions Inc. in Newton, Mass., which administers The Workplace Helpline call center. According to Mr. Burns, the concern from employers, risk managers and human resources personnel who call in has been “more about employees they may bring in to the company than those who are already there.”
He also recommends background checks as a method of screening applicants. Information misrepresented can include gaps in employment history, misstated qualifications, overstated earnings, exaggerated education records and prison records. Any of these misrepresentations can be grounds not to hire someone, he said.
Most applications have a disclaimer that false information is grounds for termination. “It depends on the seriousness, obviously, but it does get into other issues about what else the person will misrepresent in the workplace.”
A background check, he explained, “doesn't cost a lot, but the cost of bringing somebody in and finding that they've falsified their background or don't have the capability to do the job can be high.”
Lisa Bee, director of EPL risk management for Lexington Insurance Company in Boston, said risk managers need to know the importance of thinking and planning ahead.
“We get a lot of calls” when someone hires an individual “and then hears through the grapevine that they have a criminal background,” she explained. Employers and risk managers in this situation at a loss as to what to do sometimes will conduct a background check after the employee has been hired, “which you really can't do.”
The best time to do a check, she said, is before the person is hired, because a consent form must be signed by the person being investigated.
Laws about hiring someone with a criminal background differ from state to state, Ms. Bee said. But most state laws say that “if the conviction has some relevancy to the position,” the organization can decline to hire.
An example, she said, would be someone with a theft conviction being interviewed for an accountant position. On the other hand, she said, not hiring someone with a criminal conviction that has no relevance to the job could lead to a lawsuit.
Once an employee is hired, she noted, “you really have to look at how you treat them.” This includes an employee suspected of drinking or using drugs on the job.
Some risk managers react to this information by doing drug tests, but these can invade privacy and discrimination laws. The best way to deal with the situation is “to discipline them and let them go based on performance issues,” she said. “If they're on drugs or they're drinking on the job, they're not going to be doing their job well.”
Focusing on performance, she said, makes it “hard to dispute someone being terminated” as long as there is documentation.
Mr. Henry said another precaution risk managers should take is monitoring employee Internet usage. The actual sites employees are visiting and the amount of time spent there can be tracked. Sites where employees spend too much time can be blocked, he added.
Visiting illegal sites can be grounds for dismissal if stated in a company policy, he explained.
One thing risk managers should not do “is focus their employment policies on racial profiles, he said. Irrespective of what is going on in the Middle East, for example, it would be illegal in the United States to race-profile people of Middle Eastern descent.”
Workplace violence policies are a good idea to have in place, he said. These should be “zero-tolerance policies” that don't allow hate crimes, lewd behavior, or “the things you wouldn't expect to be occurring in the workplace.” Anyone violating these policies “are terminated on the first offense,” he said.
Also important, he said, is establishing a policy on workplace searches. “If you have an employee who is a suspected problem, you can search an employee's workstation without invading the employee's privacy,” he said.
When setting up these types of procedures, he said, expert advice is needed. “Any time an employer adopts a new workplace policy, it's always a good idea to bounce it off their labor attorney,” he said. “You can spend five minutes and save yourself a world of heartache.”
Many organizations have stepped up physical security in buildings with passkeys, security guards, metal detectors, electronic employee monitoring, and restricted access through unsupervised entrances, he said. Here, he emphasized, there are concerns with restricting access to fire exits.
“We've seen cases in Mexico where doors were shut at poultry factories, and hundreds of people perished in fires,” he said. “It's a big problem.”
Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, June 17, 2002. Copyright 2002 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.
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