Need Some Food for Thought?
The “Brotherhood” or closeness of personnel in our service is the same thing that makes our fire departments, rescue squads and EMS departments vulnerable, because we are longtime friends, a “family,” if you will, and we rely heavily on each other when all hell breaks loose. What you say to your brother, sister, mother or father at home will get your department or squad in trouble or possibly sued. We could not tell you how many times as retired fire chiefs, we have called firefighters or other officers “Brother” or “Sister” around the station, but in reality, they are not related to us. At your house, you may refer to your father as the old man and he thinks it funny, but at the station you have an older gentleman and you address him on a daily basis as “old man,” “pops” and the like. He seems to always smile and shrug it off, but he mentions it to the shift captain (a member of the department’s management) one day — and one day only — that it tends to make him sad. The shift captain listens thoughtfully, but never makes mention of the vet’s comment to anyone. Can you say “unlawful age discrimination based upon a hostile work environment? The federal Equal Employment Opportunity Commission (EEOC) certainly can and will ... at the drop of a hat!
A recent and informal survey of chiefs revealed that around one in five chiefs had no idea whatsoever that his or her department is a federally-governed corporate entity strictly required to abide by and live each day pursuant to an unimaginable number of federal and state statutes and regulations. A particular fire, rescue and EMS person may know HAZMAT regulations and procedures upside down and backwards, but at the same time, have no clue that it must have an active board of directors, have regular and recorded meetings of that board, have recorded and abide by strict not-for-profit bylaws, maintain and abide by numerous written policies and procedures, engage in hiring, disciplinary, promotion and termination practices in full accord with no less than 10 federally-enforced statutes! Did you know that? It isn’t a matter of whether you should ... you must! Oh, and the list goes on.
So, is your station house a well-oiled machine, a “frat house,” as they say, or something floating around in between? Does it really matter, given the “we’ll get it done no matter what” mentality that emerges at the scene of a wreck or house fire?
The answer is a resounding “Yes, it matters a lot!” Emergency services organizations are legally-recognized and legally-obligated entities required by law, both federal and state, not only to act like “real” corporations, but moreover and to the point, be real corporations. Very surprisingly and for far too many, not-for-profit emergency services entities, sometimes referred to as “501(c)(3)’s” or 501 (c)(4)’s, are absolutely and unwaveringly required by law to comply with, display, undertake and even record an almost innumerable amount of legally-imposed mandates...or otherwise suffer the consequences. Do you want to get sued and lose, merely because your department or squad failed to comply with a federal law about which you knew nothing at all?
What’s all the fuss, you may ask? The answers are simple yet unknown by far too many decision-makers in the emergency services field. The answer is that the department can have its tax exempt status revoked, be sued (and lose) under state and federal laws no one even knew applied to the department, much less willfully violated, be subjected to audit and cited, fined, and again, (that four letter word pops up once more) sued. Please, please be advised: This is not a theoretical or academic enlightenment: it is reality that plays itself out in unfortunate fire houses, rescue squad and EMS stations every day!
Need More Food for Thought?
Imagine the following scenarios:
Scenario 1 — $40,000 in gold coins goes missing from an affluent home recently ravaged by fire and handled by your department. Imagine further that, after the fact, a criminal investigation uncovers that one of your responding firefighters is a felon convicted only a few years earlier of grand larceny ... but that’s “news to you” as chief. When you’re sued for the very real claim of negligent hiring, can you really be surprised?
Scenario 2 — A fire engine, rescue truck or medic crosses the centerline, hits a family of four coming home from a Christmas party and kills two of them. Again, imagine further that, after the fact, a criminal investigation uncovers that the driver of your apparatus had two DWI’s over the past three years ... but that’s news to you as chief.
In the careers of the retired chiefs and attorneys on the staff of Management Solution for Emergency Services, we have interviewed thousands of emergency service personnel and we have heard multiple stories from applicants. If you think for one moment that the applicant applying for your job or to join your department as a member or volunteer will advise you that they have multiple DWI’s or have been convicted of grand larceny or convicted of child molestation in another state, think again!
We had a 40-plus-year-old male applying for a volunteer position at a fire department we worked for and on his application, he stated that he had never been convicted or charged with a crime. Our company has worked extremely hard to establish background checks that protect emergency service departments, so when the fire chief pulled the person’s record, he was shocked to find seven pages of past criminal history!
In reality, most chiefs would have sent a letter to someone like that saying “thanks, but no thanks” and moved on, but we wanted to know what would make the person think he could be a volunteer with two DWI’s in the last six months, larceny of a firearm, multiple assault charges and a lot more. When we confronted this applicant and read him his criminal check, he hung his head. We asked him if he thought he could get away with lying on his application and he said “hopefully.” He then told the truth and we were all shocked! He advised us that his attorney told him to join a local fire department because the judge may show him latitude on the second DWI, as he was going to court for it the following month. Chiefs, please understand that not all people applying to your department simply want to help others; they may be doing it to help themselves.
Examples like these could not only fill pages and pages of this journal, but more importantly, are illustrations of the very real and very expensive risk that is right under every department’s nose. Scary and true to life. Not a good combination for the pocketbook or the public image of your department.
Any of the examples above could cost your departments or squads millions of dollars and they are easy and cheap to stop from happening! You can stop lawsuits from “Negligent Hiring” by:
- Do have good legal policy on criminal history background checks that meets the requirement of the Equal Employment Opportunity Commission (EEOC) and Fair Credit Reporting Act (FCRA) and other state and federal laws and regulations. Not a policy pirated by a captain of the department trying to practice law. Bad policies cost companies a lot of money! In 2012, Pepsi settled a pre-lawsuit legal dispute over their Background Check policy for $3.13 million dollars, so do you really think allowing someone on the department to draft a policy that only knows what they find on the Internet is a good idea?
- Do perform good criminal background checks and not at the local courthouse. Please understand that the local courthouse background check only shows what the applicant has done in that county and leaves out what they have done in the other 3,251 across the country. Think about it, if someone is found guilty of a sex crime, like molestation of a child; do you think they will stay around or move to somewhere no one knows what they have done? Do you want that person handling “fire prevention” at your local school wearing your patch?
- Do verify that the company you hire for the background checks knows exactly how to keep your department or squad compliant with all local, state, and federal laws pertaining to background checks. For example: most departments and even background check companies don’t understand that, by law, you cannot make an applicant or employee or volunteer member pay for background checks, physicals, drug testing and other job-related items.
- There are strict federal and state guidelines pertaining to an applicant’s rights before and after you hire them and especially, if you turn them down, because of what you find on their background check. You must provide them with federally approved information before you even pull their history. If you decide not to allow them to volunteer or work for your department; you better give them other federally and state mandated information. Just going to your local courthouse and pulling the background check or pulling a criminal background check from a small business in your community could place your department in worst risk than hiring someone with a record. It is bad to pull a background check on someone to find out that they are a child molester and you tell them “Thanks, but no thanks” and then they sue you for not following the governing law and win a civil court case against you!!
- Now, please please understand one thing! We have been asked by chiefs what happens if you run a background check and you find out the person has something like “Workplace Violence” or a DWI or other past history in the last few years, but they are a really “good guy” or “good fellow” as we hear it or the “son” of a member. You as the fire chief or board of directors are the decision makers of the department, meaning you are the responsible parties! In what we do, we are asked by board members and fire chief’s if they can be sued personally and lose their homes and assets? The answer is yes you can and if you make the decision to allow someone to drive a department apparatus with DWI’s in their recent past and they kill someone, you may be held personally liable for your decision! Never make a decision that could get you thrown in jail or lose everything you have because they seem like a “good fellow.” Please manage your departments with your brain, not you heart!
The Bottom Line?
Move immediately to get your ducks in the straightest of rows. It’s not at all a matter of exhibiting a greater degree of professionalism on the job or putting forth a bit more formality in the exercise of departmental duties ... it’s a matter of learning, knowing and practicing what the law of the land requires for the protection of your department and for the outright protection of your local taxpayers and those taxpayers’ money. Yes, it’s that important.
We hope this information helps you make better informed discussions on protecting your departments and squads. Keep your eyes out for the next issue of this journal; we are going to give you easy, low-cost ways to protect your departments and squads from lawsuits that will bring your department financial hardship and will destroy your departments public imagine. As you can see in this article, there are a lot of “do’s and don’ts” within our legal system, we live under and must protect the employee or applicant and the employer, so finding middle ground makes it hard, and quite likely, too hard to tackle alone. That’s why we have at our disposal educated people called human resources directors, risk managers and employment attorneys. We focus our careers on finding and making sure our clients (fire departments, rescue squads and EMS departments) walk down the path of safety in the administrative and employment-related fields.
Management Solutions for Emergency Services, LLC (MSFES) is a team of retired fire chiefs, practicing attorneys and CPA’s that have teamed together to provide emergency service departments and squads with administrative risk reduction services that once only big companies and departments could afford. Working with and endorsed by VFIS, MSFES, we are bringing those services to any department, big or small, for the lowest prices possible, to help reduce the legal and day-to-day administrative risks faced by and placed upon today’s departments. MSFES may be reached at: [email protected] or call (828) 409-1638.
What is Negligent Hiring?
Duty Defined: An employer has duty to use “reasonable care” to select employees and contractors:
- Who are safe and competent
- Who do not have “violent propensities”, e.g., prior criminal records
- Whose background investigation checks out and or, is acceptable
Statistics on EEOC Claims
- There were 8,147 charges filed in the Charlotte District Office of the EEOC in 2012!
- North Carolina Ranked sixth in the most charges filed by the EEOC in 2012 of all 50 states and territories!
- Remember the “Old Man” jokes above, 19 percent of North Carolina’s claims were for Age Discrimination!
Statistics on “Negligent Hiring”
- Average award for “Negligent Hiring” is over $1.6 million dollars!
- Statistics show that employers lose 79% of all “Negligent Hiring” lawsuits that enter a court room!
- One of the highest awards for “Negligent Hiring” was $26.5 million and it was in the health care provider field, so don’t think you are immune?