1:45 am - Wednesday July 23, 2014

Post Offer Workers Compensation Background Checks a Legal Landmine for Employers & HR

As most of you know I recently attended the SHRM Annual Conference in Atlanta and as I always do when I attend a conference, I walk around the Exhibit Hall to see if there are any new products that I can take back to my clients. As I walked around the Exhibit Hall picking up brochures and chatting with vendors I was drawn to the booths that offered background checks. Almost all of them had a long grocery list of service offering – the one item that stood out like a sore thumb was Workers Compensation History – and as one vendor noted quite eloquently on their brochure we can do all background screenings for you quickly. They even added, “We uncover their past so you don’t have to.” Ok, I buy into the need to do background checks. Yes, they serve a legitimate business purpose. But a workers compensation background check – serves what purpose?

 

So let’s ask ourselves, why do we need a workers comp background check? What purpose does the workers comp background check serve? Or better yet, what legitimate business purpose does a workers’ compensation background offer to employers? As the EEOC will put it to any employer who thinks this is a legal endeavor, Exactly what are you going to do with the workers comp background check after you get it? Is it job related and consistent with a business necessity? (You know very well that you do not have an answer for any of these questions)

As I went down the list of screenings offered I can quickly identify why each of them are necessary. I get why you would want to do a Drug Screening – to remove potential “high or intoxicated” candidates from your hiring pool. I get why we need Sex Offender searches especially if the business involved working with children or the elderly. I can understand why a State or Federal Criminal history might be super important but I cannot for the life of me figure out why any employer needs to legitimately get a Workers Comp history check.

Honestly, the only reason a company would want to have a Workers Comp background check would be to exclude the candidate from the hiring pool – right? Does having an injury make the employee or candidate more likely to have another one? Yes, and No. Yes, some injuries never heal and the employee is likely to have long term issue from that injury. Yes, the employee could be a Workers Comp scam artist waiting to shake your company down but that is not a legitimate business reason to even have the Workers Comp data in your building. No, a past injury doesn’t set the stage for the next injury.

Let me give it to you as straight as I can – go ahead fall into the trap that that wonderful sales person from the “Background Check” company is setting for you and when the EEOC sues the pants off your company don’t say I didn’t tell you so.

If the employee has a work related injury and they have a disability – legitimate or otherwise, but a disability as qualified by the EEOC and you decided to take any adverse decision against that “candidate” post offer you run the risk of being sued for desperate impact. Tell me exactly why you didn’t hire me? Is it because you found out I had a disability? Is it because you found out I had an orthopedic injury? Is it because you found out I filed 4 other workers comp claims? What is your answer to the candidate? Dont think your Workers Comp insurance carrier is going to help you out of this jam – your on your own!

Let me set the stage:

My name is John – I applied for a Sales Rep position. You, Ms. HR Director advised me that you are going to offer me the job pending my drug test and background check. Everything else is squeaky clean except my Workers Comp history. I had a car accident on my way to a client and I suffer from problems with my lower back. The injury occurred 8 years ago and I have successfully maintained a job with no repeat injury. Along comes the background check and Ms. HR Director you decided to rescind my job offer based on the workers comp background check!

You are completely shocked when John has an attorney on speed dial…There is never a legitimate business reason to have any information about the employees Workers Compensation history during the hiring process. This information will set you up for an ADA violation lawsuit. Workers Comp background checks are best done post-accident to determine if the employee has a history that may have contributed to or impact the current injury.

To all my friends who run background check companies, you are setting yourself up to be sued as well. I know that your answer to the stage that I set will be, “we didn’t know how the employer was going to use the background check that we provided.” Really, let me ask you the same question I asked the employers’ who are reading this article, what legitimate business reason did you have for supplying the employer with my Workers Compensation history during the pre-hire background process?

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Filed in: HR & Workers Comp

3 Responses to “Post Offer Workers Compensation Background Checks a Legal Landmine for Employers & HR”

  1. March 7, 2013 at 12:21 am #

    This stuff is down to earth, hats off buds out there. Excellent Article

  2. Janet
    March 7, 2013 at 9:48 pm #

    Hi, Margaret. I don’t know how current this blog is, but I hope you can help me.

    I haven’t been on the job market long and since I was with my last employer for over 12 years I’m a little rusty at the interview thing.

    How can I know if the job I applied for checked my background for work comp claims? (Of which I’ve had one in my 35 year career, it was very low monetarily, but it was at my last job.)

    Is the human resources department (it is a County office in California) allowed to go over my attendance record with a prospective employer and if so, how?

    If they talk to my immediate supervisors and the references I provided them I feel confident that I will get high recommendations. I’m just not sure about the County’s HR office, who isn’t familiar with me personally. I have no reprimands and only excellent formal evaluations on file, and a commendation from the Director of County Services.

    thank you for any insight you can offer!

    JP

  3. Margaret Spence
    March 12, 2013 at 5:09 pm #

    Janet,

    An employer cannot conduct a workers comp background check without your approval. WC Background checks violate the tenets of the ADA especially if you have a disability and the disability is the reason you are not hired.

    Hope this answers your question.
    Margaret

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