Liability Risk

Internal Crime Prevention

Background checks and monitoring property — like laptops lent by the company — can deter and prevent crimes committed by employees.
By: | April 9, 2018 • 5 min read

Given the steady drumbeat of school shootings and other horrors, risk managers can’t afford the outrage fatigue that numbs Americans, especially given the unsettling fact that their companies’ resources — human, electronic, automotive — could be used to commit a crime.

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Economic crimes — fraud, espionage, embezzlement — are commonplace. PwC’s 2018 Global Economic Crime and Fraud Survey reports 49 percent of global organizations have experienced economic crime in the past two years, and 51 percent of frauds were inside jobs.

As different as violent and economic crimes are, risks of both can be mitigated through management practices: careful hiring, background checks, on-the-job monitoring and probing exit interviews, industry experts agree.

Ounce of Prevention

A background check on a prospective employee is not an off-the-shelf affair, said Richard G. Hudak, managing partner, Resort Security Consulting Inc., but a thoughtful, detailed inquiry by a reputable organization appropriate to the applicant’s prospective duties.

“A $25 computer ‘background check’ isn’t a background check,” he said. “Real ones look at sex crimes, drunk driving, serious debt, mismanaged credit, multiple divorces and bankruptcy.”

A veteran consultant to the hotel industry, Hudak said, “Bankruptcy isn’t a big deal for guys moving banquet tables around, because they don’t have access to guest data.”

Heidi Li Feldman, professor of law, Georgetown University Law Center

However, bellmen and housekeepers with access to property should get a more thorough check, and front desk clerks, who have access to credit cards, should undergo even greater scrutiny.

For pilots, he said, any domestic violence, DUI, or dishonesty about employment or education should be a disqualifying event.

Exit interviews can deter theft of intellectual property, said David Taylor, managing director, Protiviti, by employees who leave on good terms of their own volition and by disgruntled or laid-off workers.

“When people leave, they can release their research, proprietary information, network and customer information into the wild.”

Employers have limited tools to “prevent them from downloading that intellectual property to their new employer,” Taylor said, and exit interviews are an important reminder not to do it.

For example, Waymo sued Uber last year, alleging departing employees gave the ride-hailing company access to Waymo’s trade secrets covering technologies needed to build autonomous cars. The suit ended in a settlement.

Because debt, divorce, addictions and despair can turn good employees bad over time, periodic checks after hire are a good idea, said John Farley, vice president, cyber risk practice leader, HUB International.

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So are controls on access to information.

“Limit access to information on a need-to-know basis,” he said. Classify all data, monitor it in real time, block thumb drives and other exit points for information and set up immediate notifications if certain information is emailed. Block file-sharing websites.

Background check best practices also apply to contractors, said Scott Moritz, managing director, Protiviti. Even with the best controls, employees can go rogue.

For example, Edward Snowden, a government contractor, infamously leaked a veritable trove of National Security Agency secrets in 2013.

An investigation afterward showed his background check was incomplete, but it’s unclear whether a properly conducted check would have thwarted his leak anyway, said Moritz. Snowden considered himself a righteous whistleblower, an attitude cursory background checks wouldn’t detect.

Although out of step with current employment practices, the availability of mental health counseling might suss out the state of mind of employees with access to potentially weaponized information — as well as actual, literal weapons such as guns, said Heidi Li Feldman, professor of law, associate professor of philosophy, Georgetown University Law Center.

“A $25 computer ‘background check’ isn’t a background check. Real ones look at sex crimes, drunk driving, serious debt, mismanaged credit, multiple divorces and bankruptcy.” — Richard G. Hudak, managing partner, Resort Security Consulting Inc.

Employers should find out whether counselors can be helpful in identifying when an employee might be under pressures that could lead them to disclose classified information, Feldman said.

A single employer is unlikely to impose mandatory counseling or psychological testing on its employees, she said, but collectively they might, if sufficiently motivated, move the needle.

“Social change happens when people, like employers, bear excessive or unfair costs of a problem,” at which time they may seek help from a trade association or state chamber of commerce to nudge social change, Feldman said. It would be similar to the series of events that ultimately produced smoke-free workplaces.

Supervisors should also monitor employees’ work habits and stressors, Hudak said. His wife, a nurse, observed one of her staff members was “getting hammered” every night at a local bar.

His wife watched closely and offered help. She also documented her observations and made sure the employee didn’t have access to the hospital’s drug closet.

To Be or Not To Be Liable

In general, said Feldman, an employer can be held liable for its employees’ criminal acts when it is in a good position to influence the criminal actor’s actions, and they’re responsible for the torts of their employees when acting in the course of employment.

The exception could be where the employee is a senior executive and the conduct is imputed to the organization, said John Denton, JD, managing director, Marsh.

Liability laws aren’t as draconian as they may sound, Feldman said.

“People get very anxious when they think the law says, ‘You have to prevent all crimes of parties other than yourself.’ ”

In fact, the law requires employers to be “a reasonable person of ordinary prudence.” But what is “ordinary prudence?”

A court may consider different metrics, said Hudak, such as a CAP index, which assigns a number from 0 (lowest) to 2,000 (highest), predicting the chance of a certain kind of crime, such as homicide or auto theft, at a particular address.

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When considered with incident reports on the property and 911 calls, the index suggests which types of crime are likely and which precautionary steps are prudent.

“A CAP index would tell the court that you’ve done homework, that you know foreseeability,” said Feldman.

A crime committed using, say, a company computer while the employee is off the clock is a defensible position, said Farley. Written policies and procedures about what employees may and may not do will bolster a case, as will formal training.

A strong anti-corruption tone at the top may also mitigate liability risk, said Mark W. Jenkins, senior managing director, Glassratner Advisory & Capital Group LLC. &

Susannah Levine writes about health care, education and technology. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at m[email protected]