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ARC: SURGE IN PUBLIC VIOLENCE

Navy Yard massacre highlights delicate balance between safety and privacy

Employers hamstrung by background check rules

Navy Yard Shooting
Photo by AP PHOTO A makeshift memorial was built on a lamp post last week for Washington Navy Yard shooting victims.

Last week's Washington Navy Yard shooting highlights the delicate balance employers face in protecting their employees and customers while avoiding government scrutiny for potentially violating individuals' rights.

The shooting left 13 dead, including gunman Aaron Alexis, a U.S. Navy veteran with a troubled past that did not deny him access to the Navy property.

Mr. Alexis, a temporary employee of a defense contractor with a high-level security clearance, reportedly had shown signs of possible mental illness but apparently did not receive psychiatric treatment. He had been arrested in Fort Worth, Texas, in September 2010 on a misdemeanor gun charge and in Seattle in 2004 for malicious mischief, but was not convicted on either charge. And he had a poor disciplinary record in the Navy, but received an honorable discharge in 2011.

Experts say employers often face the dilemma of weighing the possible danger of hiring employees with mental health or legal problems against the risk of running afoul of anti-discrimination laws and the U.S. Equal Employment Opportunity Commission's criminal background check policy. The EEOC would permit employers to reject applicants only in certain cases when there has been a conviction.

“There is a balancing act with regard to that need to know and policy restrictions and consumers' rights,” said Judy Gootkind, chairman of the Morrisville, N.C.-based National Association of Professional Background Screeners.

“Arrest records have restrictions,” said Ms. Gootkind, who also is vice president of finance and administration at employment screening specialist Creative Services Inc. in Mansfield, Mass. “We really can only report when there is a conviction. That's a key, and I think in this case, some of (Mr. Alexis') situations did not result in a conviction, so they may not have been deemed reportable.”

In addition, health-related and mental health-related information “is always to be kept confidential,” said Tracy Knippenburg Gillis, global reputational risk and crisis management practice leader at Marsh Risk Consulting in New York. “So it does create a natural restriction ... of how much information is shared and with whom.”

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Despite the restrictions, many expect employers to be “sort of minders of the gate,” which is a “pretty steep burden,” said Michael W. Fox, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Austin, Texas.

Mr. Alexis had worked for The Experts Inc., a Florida subcontractor to a unit of Palo, Alto, Calif.-based Hewlett-Packard Co. that was hired to refresh computer equipment used on the Navy Marine Corps intranet.

HP said in a statement that it is “cooperating fully with law enforcement.”

The Experts said Mr. Alexis had been employed about six months by the firm, during which a service performed two background checks and twice confirmed his government clearance with the U.S. Department of Defense. The latest checks in June “revealed no issues other than one minor traffic violation,” the Fort Lauderdale, Fla.-based company said in the statement.

“The consumer reporting agency (that performed the background check) may have done exactly what they should have done ... and it may have been a case of the reporting agency being constrained by certain restrictions,” Ms. Gootkind said.

“Companies need to do thorough background checks for people that they hire, particularly for contractors,” said W. Barry Nixon, executive director of the National Institute for the Prevention of Workplace Violence Inc. in Lake Forest, Calif. “That's often a hole for many companies: They screen their employees, but they don't screen their contractors' (employees).”

Rick Shaw, CEO of Awareity Inc., a Lincoln, Neb.-based provider of threat assessment, management and prevention solutions, said, “Certainly, background checks are huge.'' But that information too often is “siloed” among different groups collecting individuals' background information, leading to failures to make connections that might have revealed risks to employers or government agencies.

There is no doubt the Navy Yard shootings will prompt lawsuits, legal experts say.

“Victims and families of victims will be looking to see whether his employer was negligent in hiring and allowing him access to the Navy Yard,” said Martha J. Zackin, a partner with Bello Black & Welsh L.L.P. in Boston.

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But the issue of federal government immunity from liability might arise.

Employers of Mr. Alexis could be found liable if it is determined his actions were foreseeable, said David Shlansky, managing partner at the Shlansky Law Group L.L.C. in Waltham, Mass.

But Robin E. Shea, a partner with Constangy, Brooks & Smith L.L.P. in Winston-Salem, N.C., said, “I'm not sure, from our current state of the law, anything could have been done” to prevent the incident or to keep him from working at the Navy Yard.

“This may very well turn out to be just an unfortunate turn of events where this could not have been prevented by any of the means we have now,” said Richard B. Cohen, a partner at Fox Rothschild L.L.P. in New York.

Given the EEOC's criminal background check policy, employers “don't really have an option” to not hire employees with gun-related issues if there is no conviction, said Diana Hoover, a partner with law firm Hoover Kernell L.L.P. in Houston.

When employers deal with an employee they think might be mentally unstable, it “raises the specter of a potential disability discrimination problem,” said Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz P.L.L. in Cleveland. But as more workplace shootings occur, a “sliding scale” moves toward providing employers with justification to act when they perceive a threat, he said.

Thomas Servodidio, a partner with Duane Morris L.L.P. in Philadelphia, said one option for employers is to conduct a thorough investigation under the Fair Credit Reporting Act, although it requires the individual's consent.

Ms. Gillis said that each employer needs to decide the appropriate level of security balanced with making employees comfortable in reporting concerns about a co-worker's behavior, and what a human resources professional should do with the information.

“It's important that you're constantly reviewing, revising, revisiting your processes,” Ms. Gillis said. “It's easy to become complacent.”

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