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American Society of Safety Engineers White Paper Addressing PRE-EMPLOYMENT TESTING AND INVESTIGATION FOR SECURITY-SENSITIVE AND OTHER POSITIONSNOTICE: The American Society of Safety Engineers (ASSE) Council on Practices and Standards (CoPS) produced this white paper and set of recommendations. CoPS provides technical insight and expertise to the ASSE's membership. CoPS also addresses the practice of the safety profession, its specific disciplines and the standards of practice that impact its members and the general public. CoPS is structured to provide a balanced and sound assessment of matters related to the effectiveness and efficiency of the standards of practice in the Safety, Health and Environmental (SH&E) profession. CoPS consulted with many organizations, entities and governmental agencies to develop this white paper, but it has not been reviewed by any entity other than the ASSE. The contents of this white paper and its recommendations do not represent the views of any organization other than the ASSE. The mention of trade names, companies or commercial products does not constitute a recommendation or endorsement for their use. The information and materials contained in this publication have been developed from sources believed to be reliable. However, the ASSE accepts no legal responsibility for the correctness or completeness of this material or its application to specific factual situations. By publication of this white paper, the ASSE does not ensure that adherence to these recommendations will protect the safety or health of any persons or preserve property. Approved by The Council on Practices and Standards - April 6, 2005 Members of the American Society of Safety Engineers (ASSE) practice specialties have the strong belief that the importance of pre-employment testing or investigation of applicants cannot be overstated. This is particularly true for security-sensitive positions. There are many questions to be answered, and the answers will vary according to local jurisdiction or organization policy. The purpose of this paper is to pose some questions that will require further research or study, to present some of the testing or investigation methods that are required by certain entities such as the U.S. Department of Homeland Security, Transportation Security Administration or the Department of Defense and to present some of the methods that can be used to test individuals or to investigate their background. There are state and federal requirements under development for certain types of positions (and others, which are already firmly established). In addition to what is legally required, there are also best practices that should be considered to limit potential liabilities. Given the current security environment, the number of background checks conducted has increased. This increase is tied to negligent hiring lawsuits, failure to conduct background checks for healthcare workers, child abuse- and child abduction-related incidents, security concerns related to terrorism fears post-9/11 and scandals in the financial world. 1 One of the questions to be answered is what constitutes a security-sensitive position. Many personnel who work in the airline industry—flight crew, ground crew, security screeners—have positions that are clearly “security-sensitive.” Others employed in government or in pharmaceutical laboratories may have access to hazardous substances such as biochemical agents that can cause serious harm to the public (or at least significant hysteria) if released to the general public in harmful ways. Additional key personnel to consider should include those with government security clearances, individuals working as government contractors in security, some in the oil and gas industry, those who transport hazardous materials, individuals who work at nuclear plants and chemical manufacturing facilities, law enforcement and military personnel, emergency services personnel, customs agents and border control personnel. The healthcare industry is mandated to conduct background checks to ensure that healthcare workers do not have a history of abuse, neglect, theft or a criminal history of fraud in billing procedures. One could expand the term “security-sensitive” to include many information technology personnel who would be able to maliciously disrupt communication channels. This list could be quite comprehensive depending on the specific definition of what includes “security-sensitive.” The federal government designates positions in different levels of “sensitive” positions, each of which has different requirements for background checking. A Personnel Security Investigation (PSI) may be required. A PSI is an inquiry into an individual's loyalty, character, trustworthiness and reliability to ensure that he or she is eligible to access classified information or for an appointment to a sensitive position or position of trust. A PSI consists of one or more of the following inquiries:
Some organizations have defined “security-sensitive” by policy while others have had “security-sensitive” defined by statute or government code [for example, the State of Texas has described security-sensitive positions in Texas Education Code § 51.215(c) and in Texas Government Code § 411.094(a)(2)] . Some of the positions that have been designated as “security-sensitive” include those in which employees:
In addition to what may be required by certain entities, there are some best practices that can be applied to limit your risk of hiring unsuitable employees. These options fall into fairly discrete categories, including job applications, reference checks, DNA and fingerprint checks, credit checks, substance abuse screening, psychological screening, medical screening and criminal background checks. The rights of applicants are protected by laws such as the Americans with Disabilities Act (42 USC §12101), the U.S. Equal Employment Opportunity Commission ( www.eeoc.gov ), the Fair Credit Reporting Act (15 USC §1681 et seq.), the Federal Trade Commission ( www.ftc.gov ) and others. The limitations placed on employers must be understood by those completing employment screening. In addition to due diligence that is required by law, many human resource and risk management professionals recognize the value in additional testing. The key is to do this testing in a manner that is consistently applied and is legally allowed. The risk management world is familiar with the concept of “negligent entrustment,” which holds an organization responsible for acts of an employee when the organization did not properly screen the applicant or employee to discover certain information or when the employer has knowledge of certain facts and yet takes no action. A common example of this is an employer who hands the keys of the company car to the new employee and tells the employee to “run an errand” without verifying the status of the individual's driving record. The concept of “negligent entrustment” could be applied if the employee does not have a valid license or has a history of “suspect” behavior (this could be a driving under the influence conviction, multiple accidents or violations). One problem with this concept is that the application of it is subject to a decision of a jury, not necessarily what is printed in the law. Another example is a known sexual offender who is placed in a role of direct contact with children. Knowing what is required and/or allowed by law is the first step to minimizing liability. Making a determination regarding best practices, and implementing those best practices where allowed by law, is another step. Monitoring the effective implementation of your selected controls is often a weak link in the process. Without an effective auditing process, the quality and consistency of your screening process will suffer (resulting in increased liability for failure to follow your existing policy). Some of the following are more effective methods than others, but each has a potential role to play in determining if your applicant is capable of performing the required tasks, while at the same time identifying any issues, which may increase your risk (security or otherwise) from hiring that individual.
“More than six percent of the population over 12 years of age (13.9 million people) has used drugs within the past thirty days. Rates of use remain highest among persons aged 16 to 25—the age group entering the work force most rapidly.” 3 “Seventy-three percent of all current drug users aged 18 and older (8.3 million adults) were employed in 1997. This includes 6.7 million full-time workers and 1.6 million part-time workers.” 3 “According to the results of a National Institute on Drug Abuse (NIDA)-sponsored survey, drug-using employees are 2.2 times more likely to request early dismissal or time off, 2.5 times more likely to have absences of eight days or more, three times more likely to be late for work, 3.6 times more likely to be involved in a workplace accident and five times more likely to file a workers' compensation claim.” 4
A number of screening methods have been briefly reviewed above. Each of these methods is subject to additional research and study. The intent here was to identify methods that need to be better understood and applied to the process of testing or investigating an applicant. Screening applicants or investigating their background serves several purposes, including demonstrating due diligence, discouraging applicants from falsifying information or applying if they have something to hide and identifying better job applicants. Properly testing or investigating an applicant is required by law for many positions. For those where such extensive testing is not mandatory, there are risk management ramifications to not conducting appropriate testing or investigations. Many organizations do not adequately screen their applicants and then end up paying multiples of the costs of such screening through poor performance, fraud, injuries, judgments and damages and other costs associated with hiring an applicant who should have been screened out during the application phase. REFERENCES
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