The National Threat Assessment Center reported that between January and December 2017 incidents of mass attacks, during which three or more persons were harmed, were carried out in public places within the United States. These acts violated the safety of the places [where people] work, learn, shop, relax and otherwise conduct their lives.1

For those incidents that occurred in a workplace, it is no question it was a tragedy for the victims and their families, however, in the vast majority of the situations its also likely was the beginning of a nightmare scenario for the employer involved.

The ensuing law suit will allege that the employer was grossly negligent because the shootings were reasonably foreseeable based on the shooter’s history of misconduct and his known propensity for violence. In support of the claim, the family’s attorney will argue that the company:

should have known the shooter would likely or was capable of harming people;
negligently failed to take appropriate security precautions and allowed the employee to return to the premises
negligently retained the shooter for years
negligently did not have a workplace violence program in place to protect employees.
Further complicating the issue is that some 22 states have passed laws that limit property owners’ ability to ban firearms in vehicles in parking areas, according to the Law Center to Prevent Gun Violence, a San Francisco-based gun-control advocacy group.

Putting politics aside, easy and immediate access to firearms in the company parking lot presents challenges for employers and their duty to provide ‘‘a safe and healthy work environment.’’ in addition, easy and immediate access raises concerns about the potential for employee violence by an employee with a ‘short fuse’ as an emotional response without a ‘cooling off’ period that would naturally occur if the employee had to go home or go purchase a gun.

To minimize the above referenced legal risk regarding negligence, vicarious liability and to promote a safe work environment, employers often implement workplace violence policies that include a ban on weapons at the workplace where they are legally allowed to do so. Negligence occurs when an employer does not take reasonable actions to address or prevent violence that was foreseeable or that they should have known may occur. Vicarious liability happens when an employer can be vicariously held liable for wrongful acts committed by an employee in the course and scope of their employment.

While, there is no federal law that regulates weapons at private workplaces, beginning with Oklahoma, several states have enacted so-called guns-at-work laws. These laws, which are typically designed to protect employees’ rights to possess concealed firearms, vary in terms of their restrictions.

The following is a general overview of ‘Guns at Work’ or ‘Guns in the Parking Lot’ laws as they are sometimes referred to: 2

Protect employees’ rights to store firearms in their private vehicles even when parked in the employer’s parking lot.
Limit an employer’s ability to search vehicles on its property.
Prohibit discrimination against gun owners.
Permit employers to prohibit weapons at work if they post a required notice.
Subject an employer to fines for failure to comply with the law’s restrictions or requirements.
Provide protection to employers that comply, including immunity from injuries arising out of compliance.
Specify that employers can allow weapons at the workplace without violating the OSH Act general duty clause which states that a company is required provide a safe work environment from know work hazards, e.g., workplace violence.
The challenge for employers is that on the one hand, without immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk or if the laws are not complied with their company may face civil or criminal penalties in some states. The lack of consistency and hodgepodge of requirements in state laws also makes for a complex situation for employers to manage.

So what is an employer to do?

Barry Nixon, Executive Director, National Institute for Prevention of Workplace Violence, Inc, offers the following advice. The current reality in today’s world is that the possibility of workplace violence or an active shooter situation occurring in your workplace should be recognized as a real potential issue. Consequently, employers should have a plan for preventing and/or addressing an incident if one should occur. The following are some of the items that should be included In your plan:

Establish a workplace violence prevention plan that includes a specific component that addresses active assailant (shooter) situations.
Establish either a separate policy or incorporate into your workplace violence policy a section that addresses ‘Weapons in the Workplace.’ We recommend a separate policy.
This section or policy should prohibit employees from bringing firearms and other identified weapons on to your property or premises; in jurisdictions that have ‘Guns in the Parking Lot’ laws the policy should specifically limit employees rights to bring a weapon on to company property to the parking lot where the weapon must be stored in locked vehicle and out of sight. In other words, it should be clearly stated that these laws do not allow an employee to bring their weapon into your building or workplace.
In addition, in jurisdictions that permit guns in the parking lot, employers should consider security implementing measures that control access to employer parking lots where firearms can be stored. Having trained security personnel monitoring such areas can limit the likelihood an enraged employee can access his firearm and return to the workplace to cause harm without notice.
If not otherwise prohibited by state or local law, designate a separate, gated and secure area in the company parking lot for employees transporting guns in their cars. Further security for this area might include surveillance cameras and dedicated security personnel to control and monitor access to and from the ‘‘gun lot.’’ The policy should clearly state that possession of a firearm outside of the specific parking area is strictly prohibited, and failure or refusal to adhere to this policy may result in disciplinary action up to and including termination.3

Finally, except that ‘Murphy’s Law’ is alive and well and despite your best efforts something can go wrong, make sure you develop a crisis management plan to address an incident should one occur.
Active shooter incidents continue to haunt the American workplace and no employer should deny the real possibility of an incident occurring at their workplace. As Nashua Police Office Dan. David Elliott, put it, “Hope is not a course of action,” in preparing for how to deal with an active shooter incident.” Accordingly, employers should do their absolute best to prevent harm from coming to their employees by implementing a well-developed workplace violence prevention policy and plan that addresses active assailant (shooter) situations despite the complicating factors in ‘Guns in the Parking Lot’ laws

LI Business Expo May 10th

Nationwide Screening Services will be exhibiting at the

LI Business Expo

May 10th

NYCB LIVE home of The Nassau Veterans Memorial Coliseum
Hempstead, NY

Come Visit us at Booth 502

April 2018

Message from the Editor:

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

Nationwide Screening Services will be exhibiting at the Long Island Business Expo on May 10th at the NYCB LIVE home of the Nassau Veterans Memorial Coliseum. Come visit us at Booth 502!

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.


Lorenzo Pugliano


April 2018

Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions – Even if Substantially Related to the Job

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual’s conviction record, unless the conviction is “substantially related” to the position. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. In Staten v. Holton Manor (January 30, 2018), an applicant applied for a job as a certified nursing assistant at a skilled nursing facility. She disclosed on her application that she had been convicted multiple times, but that one of the convictions had been expunged. When she was not hired, the individual filed a charge of discrimination alleging the employer had violated the Wisconsin Fair Employment Act. The Wisconsin Labor and Industry Review Commission concluded that the employer could not rely on the expunged conviction when arguing that the individual’s conviction record was substantially related to the job.

April 2018


April 2018

9th Circuit Affirms Dismissal of FCRA Putative Class Action for Lack of Standing

The Ninth Circuit has ruled that the plaintiff in Bassett v. ABM Parking Services, Inc., et al., Case No. 2:16-CV-00947 (9th Cir. 1018) failed to allege a concrete injury-in-fact sufficient for Article III standing in a suit alleging a violation of the Fair Credit Reporting Act (FCRA). The panel applied Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), in which the Supreme Court emphasized Article II standing requires a concrete injury even in the context of a statutory violation. The panel also discussed the legislative history of the FCRA requirement to redact credit card expiration dates and concluded that the congressional judgment weighted against the plaintiff because Congress’ findings showed that a disclosed expiration date by itself posted minimal risk. And finally, the panel found the plaintiff’s alternative statutory theories of injury to be unpersuasive.


Washington Ban the Box Law Limits Criminal Background Inquiries

Washington will become the next state to implement “ban the box” legislation in June. Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA) on March 13, which prohibits inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified” for the position. Some employers are excluded, including those hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, and any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider or rely on information about an applicant’s or employee’s criminal record for employment purposes; among others. Maximum penalties begin with a fine of $750 for first violations and $1,000 for each subsequent violation.


US Companies Doing Business in the EU or Impacting EU Individuals Must Comply with the EU GDPR by May 25, 2018

In a short two months, the European Union’s General Data Protection Regulation will take effect. The deadline for compliance is May 25, 2018. The GDPR significantly expands the jurisdiction of the EU’s data privacy framework to companies processing or controlling the personal data of employees or other individuals residing in the EU – regardless of the company’s location. The GDPR covers companies if it falls under one of the following tests: ‘establishment,” “goods and services” or “monitoring.” Among other heightened requirements and obligations, if a company is covered under the GDPR, it will be subject to stricter rules on obtaining employee consent to process and share personal data; it may have to appoint a data protection officer; and its employees will have greater rights with respect to access and control of their personal data.

April 2018


April 2018

Maine Recreational Marijuana Law Limits Drug Testing, Disciplinary Consequences Imposed by Employers

Effective February 1, 2018, a provision of Maine’s recreational marijuana law prohibits employers from taking adverse employment actions for off-premises marijuana use. One of the provisions provides that employers are not required to permit or accommodate the use, consumption, possession, trade, display, transportation, sale or growing of marijuana in the workplace. In addition, employers are permitted to enact and enforce workplace policies restricting the use of marijuana by employees and discipline employees who are under the influence of marijuana in the workplace. The law does, however, prohibit employers from “refusing to employ a person 21 years of age or older solely for that person’s consuming marijuana outside of the … employer’s property.”


California Cities Drop Thousands of Marijuana Convictions

San Francisco and San Diego are moving to erase thousands of marijuana convictions en masse, which could be life-changing for some and helpful, especially, to minorities. San Francisco District Attorney George Gascon said he aims to “fix the harm that was done not only to the entire nation but specifically to communities of color.” Nine states have marijuana laws that allow people to clear or modify their records, according to the National Conference of State Legislatures.


Hair or Saliva or Urine? Which is Best for Drug-Testing Job Candidates?

There are currently three primary methods for specimen collection for employers who want to create a safe and healthy workforce through drug screening. Urine testing is used by 90 percent of employers, according to HireRight, with saliva used by 10 percent and hair used by 7 percent. HIreRight’s Dr. Todd Simo noted that alternate specimens are gaining interest. “Both hair and oral fluid testing have had double-digit yearly growth as more companies become aware [of them],” he said. Urine and hair testing pick up many different drugs, such as prescription medications, while oral testing panels are typically screening for marijuana, cocaine, PCP, amphetamines and opioids.

April 2018


April 2018

ICE to Employers: Expect More Form I9 Audits, Arrests and Outreach

Immigration and Customs Enforcement (ICE) agents conducted workplace raids on 77 businesses in San Francisco, Sacramento and San Jose in February and in early January, nearly 100 7-Eleven stores were targeted in the largest immigration enforcement operation conducted under President Donald Trump. Employers should expect this increase in worksite enforcement to continue. ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers. But, as part of the ICE Mutual Agreement between Government and Employers voluntary compliance program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system, as well as certification for complying with the law.

Read more

Response Protocol for I-9 Audit and Immigration Raid

A Form I-9 Audit begins when Immigration and Customs Enforcement (ICE) serves a Notice of Inspection to a company representative requesting a review of the company’s I-9 forms for every employee. ICE may not request any personnel file that goes beyond a current and past employees list with social security information. A Notice of inspection must be served at least three days before ICE conducts the audit. ICE may arrive at a place of business in its enforcement capacity by making an unannounced visit to the workplace to search the premises, question employees, and review documents. In order to carry out this type of “raid,” ICE must apply for a judicial search warrant based on evidence such as noncompliance during an I-9 audit. Employers should consider designating one employee as a “Response Lead” at each corporate location that is deemed of potential interest to ICE.


April 2018
Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

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