Worker's Compensation Background Checks

Lisa In Iowa

Currently, we run a criminal background check post offer, pre-employment on all applicants. In addition, we also run a driving record check on those that are operating a company vehicle and a credit check on those that will be handling cash and credit card transactions. (We have several retail stores).

Our background check provider has also recommended that we run post-offer, pre-employment worker's compensation check on all applicants. He explained that although it is uncommon to have issues, one person can cost our company thousands of dollars in worker's comp expense. Although, I do agree worker's compensation can get expensive, running worker's comp checks concerns me that we may experience claims of discrimination against the Americans with Disabilities Act if we deny employment to someone because of the medical information provided in a worker's comp check. Are worker's comp checks common? Are other companies providing these, and if so, have they ever rescinded an offer because of them? Any information that you can provide would be helpful. Thanks!

System

That's a new one on me, though others might have heard of it. My first concern is whether it's illegal retaliation under your state's WC law. The same as it would be illegal retaliation to refuse to hire someone because of their union activity at a previous employer, or because they filed a harassment charge at their prior job. I would guess that courts in some states would find it illegal.

Presumably your intention is to weed out accident-prone people, and not to discourage injured workers from filing WC claims, but a background check won't show injuries outside of work, so they're not very useful.

And yes, I think it could be ADA discrimination if you reject an applicant because of a WC disability that doesn't prevent them from doing the essential functions, blah blah blah.

Unless other people chime in that this is a common practice, I wouldn't do it without talking to a lawyer in your state.

James Sokolowski
HRhero.com

Paul in Cannon Beach

You can ask about an applicant's past worker's com claims post offer, but only to determine a history of fraudulent claims.

If you just want to screen out people who experienced expensive WC claims, you would be putting yourself at risk for a retaliation claim.

You would also need to apply this process equally for each applicant.

Statistically, top performing employees have less absenteeism and less WC claims. Hiring the best people you can and pay them competitive wages and benefits is actually a strategy for reducing WC claims.

We have an average of 90 employees working in food service, housekeeping, maintenance and other accident-prone areas and we have gone 489 days with just one recordable incident.

I have found the best way to reduce WC claims is to raise the awareness of staff and supervisors about the importance of safety through regular training, communication, etc.

A big ol' sign that says "We have worked __ days with out a recordable incident. Our previous record was __ days!" helps too. In fact, I think a few of the more minor claims (bumps and scrapes) have simply been avoided because employees want to break the previous record.

davids

I agree with James that you are setting yourself up for claim of retaliation for filing a WC claim. Once you have the information regarding prior WC claims in your possession, if you withdraw the offer of employment, you will be on the defensive trying to prove that was not the reason for withdrawing the offer.

Even if an applicant has a history of filing multiple WC claims, it doesn't necessarily mean their accident prone or trying to defraud the system. We employ police officers, fire fighters, road crews, etc. These are physically demanding and dangerous jobs which result in WC claims.

I think your best bet is a "don't ask, don't tell" policy when it comes to prior WC claims.

HR In NH

I agree this type of background check could get you into trouble.

Plus, not only are there demanding and dangerous jobs out there, but there are also unsafe companies, so this info could be misconstrued.

I believe as a practice, WC insurance companies will review past WC claims to determine any concerns, so this info will assist in a fradulent claim if it occurs. I think either way, fradulent claims happen. You just do everything you can to fight it.

E Wart

I wouldn't touch this with a 10 foot pole. (Sounds like your vender is wanting more business.) However, you might want to talk wiht your W/C carrier to make sure (most do this anyway) that they check your employees with their network hook up to see if any claims look fradulent. However, this is after the claim happens, but could also be denied by W/C carrier if they see something funny.
E Wart

pork1

Lisa: Good afternoon from the warm state of Mississippi. My carrier and I do background search within the State data bank to which we as employers are authorized to view for all Worker Comp claims. Post offer, I check to see if the management team of interviewers has made the right ful choice. 99% of the time there has not be a negative search and the management team has not heard from me of anything. It was I that asked the question in the interview process if there was any physical reason, why he/she would not be able todo the job? When I do the background search on the state w/c network I am looking for the trust in the interviewee's response. I have found one and when question by me prior to the enrollment process, he chose to stop the enrollment process. I told management, of the turndown and kept the HR information to myself and my boss the GM. Bottom line is to withhold information of this nature until it is the right time!

Richard

System

[font size="1" color="#FF0000"]LAST EDITED ON 11-30-06 AT 03:46PM (CST)[/font][br][br]Lisa,
Ditto on James response. However, there are possible alternatives, DEPENDING UPON STATE LAW. We ask all post-offer applicants to complete a medical questionnaire that asks if there is anything that would prevent them from performing the essential functions, asks them if they have ever been restrcited by a physician from performing certain jobs (and if yes, what jobs), and asks them if they have ever had medical conditions related to: then we list a series of medical conditions such as back injuries, carpal tunnel, seizures, high blood pressure, neck or shoulder ailments, knee problems, breathiing difficulties, etc. If they check yes on any of them, and those conditions relate to the job they would be performing, we normally request that they go to their medical provider and get a release to perform the essential functions of the job at hand, then provide them with a list of the physical and mental demands of the job to take to their doctor to review. It has worked extremely well in insuring we don't assign folks to a job that could potentially re-aggrevate an injury or medical condition, and many times when we did ask for medical clearance, they never returned. Additionally, if they indicate on that form that they have never had any medical conditions or restrictions placed on them in the past, and do end up incurring a workers comp injury, if the comp carrier finds a previous claim filed (which they will look for) we normally terminate the employee for falsification of employment records. This process has been reveiwed and approved by our attorneys and our comp carriers, and has been instrumental in lowering our losses for workers comp.