Imagine the job interview of the future - an interview where your reviewer is totally unconcerned with your professional qualifications - an interview where every facet of your personal behavior is examined, ranked, and coldly calculated to be sure you will be little more than a zombie - a walking automaton programmed to obey despite dangerous work environments - the type of person who blindly walks into the slaughter house. Sound far-fetched? Well, the only thing futuristic about this scenario is that computer chips of our personal and personnel information haven't yet been implanted under our skin to be easily read by a scanner. More and more job interviews for nurses are following this pattern, and the so-called "personal factors" being factored into the employment equation are obtained by corporate entities which serve the role of private investigator, circumventing your privacy to expose any small detail which could classify you as a "bad hire."

Be prepared for this line of questioning, or accusations, the next time you apply for a job.......

Mr. Manager: Well, Ms. Nurse I've been reviewing your application and you have a very exceptional clinical record.

Ms. Nurse: Why thank you Mr. Manager, I have acquired some good experience over the last twenty years....

Mr. Manager: Well, of course you have. You indicate here you've worked in the surgical ICU for fifteen years, and the emergency room for last five years. You held positions as staff nurse and clinical supervisor, and served on several hospital committees. You have advanced certification in ACLS, PALS, CCRN, CEN. Why you even have glowing personnel evaluations from your former employer. But I'm afraid, Ms. Nurse, that this is only part of what we need to evaluate your performance.

Ms. Nurse: What do you mean?

Mr. Manager: It's you pre-employment screening Ms. Nurse. We contacted a private investigating firm and received a complete report on you, and frankly, I don't see how we could hire a person of your character.

Ms. Nurse: I'm sorry, I don't understand.

Mr. Manager: Well, let me explain. It seems you used to smoke cigarettes Ms. Nurse. Statistically speaking, chances are you will resume smoking and smokers miss approximately six to ten days each year from smoking related illness. This would cost our institution more, and gives you a big check mark in the "unreliability column."

Ms. Nurse: But I quit, and I ....

Mr. Manager: Now, now, Ms. Nurse, let me finish. Interrupting the job interviewer like that just cost you some more points. Besides, I see here you have also had two speeding tickets over the past five years. This could indicate that you would be tardy to work, or that you don't plan ahead, and it certainly tells us that you don't respect authority. Apparently you were also involved in an automobile accident in 1993. Whatever injuries you sustained will make you a weaker employee. You have to be able to hold your own here - no one will be around to help you turn or ambulate your patients. As far as being weaker, you're also over 40 years old, you are in physical decline in general.

Let's see what else? Oh yeah, by your credit report you missed the deadlines on a couple of credit card payments demonstrating a general lack of responsibility and inability to manage your own finances. It also says here that you are a single mother - now that's big time demerits Ms. Nurse. Kids get sick. There will be child care problems from time to time, you'll have custody problems with your ex, and you'll have to take off work. Again you're unreliable. Being a single parent also tells us you couldn't even keep a marriage together, you obviously lack dedication. Then there are these comments from your former employers about questioning their authority and refusing to work...

Ms. Nurse: Now wait a minute, the only time I ever refused to work was one night when they had only staffed one nurse for each six ICU patients, it was totally unsafe, they were jeopardizing lives!

Mr. Manager: Now, now, there you go again interrupting me, and besides one nurse to six critically ill patients, what's wrong with that? The days of big hospitals budgets are gone Ms. Nurse. These are the days of big hospital profits and don't you forget it. No I'm afraid you just don't measure up.

Ms. Nurse: But what about all of my experience? Just what are you looking for?

Mr. Manager: Well, actually that experience of yours is a detriment too - we would have to pay you a higher salary. No, what we are looking for is a fresh graduates from nursing school. These women are usually single and have no children, they need a job to get experience and to pay back their student loans, they aren't smart enough yet to question authority, and they kiss doctor's feet which minimizes problems we have with the medical staff. Basically, they are the cheapest and most easy to exploit and abuse, and that is way we like it Ms. Nurse. After about five years they wise up, become problem employees, and then we find ways to get rid of them. When we terminate them, we blackball them with a pre-employment screening company to eliminate this plague on the health care industry, and you know what, by using these other companies for pre-employment screens, we virtually eliminate any liability we might have incurred from violating your personal privacy or employment rights. So get out of here Ms. Nurse and good luck finding a job. Have you ever consider collecting trash?

This mock interview is obviously a fictitious example, and is exaggerated to make a point. After all, I haven't met a single manager yet with enough backbone to openly admit how they abuse and exploit nurses. They simply remain silent while perpetrating their crimes, and most nurses don't realize that they have been victimized.

Unlike the above interview, pre-employment screening companies, and the damage they inflict, are not fictitious, and could be classified as being open and notorious in their actions. They are very real, and while they may perceive themselves as only providing a service for prospective employers, the havoc created by these companies is just beginning to be felt by professional registered nurses. Essentially what we have here is the corporatization of blackballing nurses!
 

Managers stick together. They know how to abuse nurses and get away with it. They are skilled in how to play this game. It's easy. The fact a remark was made and communicated to a third person may be easy to prove, but then one has to distinguish between the remark being fact or opinion. A good example is the manger who reports that a nurse is untrustworthy or irresponsible. Essentially the nurse is branded with an implication of having been dishonest or of having stolen property from the institution, yet this was not specifically stated. Courts have held that such statements are opinions not factual statements. An example of a factual statement would be, "Ms. Nurse stole $10 dollars worth of office supplies from my office." Now this is a statement which can be proven true or false, and that is basically how you separate statements of opinion from statements of fact. Thus, the employer can effectively slander a nurse and hide behind a shield of "just stating my opinion." Employers frequently use this tactic to supplement the nurse's written evaluation. Thus, you can have a glowing written evaluation, and then your boss still blackballs you by verbally reporting to the pre-employment screening company that you have an attitude problem, or are untrustworthy, or just about anything which can't be proven to be a defaming statement of fact.

Even if the nurse proves a past employer defamed her, she must then prove she was damaged by their remarks. Any prospective employer can simply state they hired another person based on qualifications, or salary and budgetary considerations, or for that matter, that they liked one person's smile better than the other's. Managers have an unlimited ability to deny they blackballed a prospective nurse employee, or that they refused to hire a nurse based on another institution's blackballing. Thus a given manager at the hiring institution covers for the one giving the bad reference knowing the favor will be returned. As I noted, managers will scratch each other's backs, and such favors are reciprocated daily.

The next lie for the hospital to engage in is to plead they have a qualified immunity or privilege to blackball an employee. The legal argument will go something like this, "We believed in good faith our allegation was true, and it was limited to the business purpose of protecting patients." In other words the management will say that they are obligated to protect patients from this terrible nurse, and they restrict their comments to other members of the health care industry - thus the nurse can still get that job collecting trash - no problem. The only way a nurse can defeat this position is to prove the employer had a malicious intent when they made the defamatory remarks - again this is a very high standard of proof for an ex-employee to meet. Nursing managers basically have an unlimited ability to destroy a nurse's career while lying about their intent by claiming they are only concerned with protecting patients.
 

Basically, employers can be held liable for the actions of an employee while acting within the scope of their employment. This legal doctrine is called "respondeat superior." Legally speaking there must be a master-servant relationship (and I doubt anyone in the nursing profession would deny they are being treated as servants), there must be a breach of duty owed to the patient by this servant nurse, and the nurse must have been acting within the scope of her employment. The fear which has struck a cord with hospital and nursing managers everywhere is not this doctrine per se as they have always been liable for their employees while they're on the clock. What has them popping Prozac today is that liability for their employees has been expanded in some circumstances.

In certain situations the courts have held the employer to be liable for actions falling either within or outside the scope of employment if the employer was negligent in the hiring process. If an employee is acting under "the color of their employment" the hospital could be held liable. An example would be if a nurse were to steel the property of a patient - thus no duty of patient care was breached, but the crime occurred while the employee was on the clock and acting within the capacity of their employment.

Again the law requires a high level of proof with regard to negligent hiring. To hold an employer liable the injury inflicted must occur while the employee is acting under the auspices of their employment; the employee must be shown to be unfit; the employer must have known about this "unfitness" prior to the injury (thus, known the nurse was a thief, or an alcoholic, or a psychopath, or something); the injury inflicted must have been a foreseeable consequence of having hired the unfit employee; and the act of hiring this employee, in an of itself, must be shown to be the direct cause of the injury. It doesn't take a legal education to see how high the burden of proof would be in a situation like this. Proving a direct link between hiring an employee and that employee then injuring another person because of the very act of being hired is difficult at best and is a rare occurrence.

Ryan and Lasek undertook a review of case law and discovered that between 1920 and 1991 a whopping 80 cases concerning negligent hiring were filed nation wide, and of those, employers lost less than half. While it's true that legal case reporters only document appellate cases, and there were probably more cases filed at the trial court level, this number accurately reflects that there is no litigation explosion when it comes to negligent hiring by employers. So again one would have to ask, why are nursing managers so afraid of lawsuits resulting from the actions of potential employees? The answer, as mentioned earlier, seems to be a simple case of irrational fear on the part of these managers. Employees lose the majority of their defamation suits, and rarely are employers held liable for negligent hiring practices. There is no need for hospital administrators to fear either blackballing a nurse or fear a suit stemming from hiring a bad practitioner. This leads one to the conclusion that if these administrators are acting rationally then their only motivation can be that of malicious persecution of nurses - nurse abuse plain and simple. This really boils down to an authority issue where intimidation and exploitation are the desired goals - beat nurses into submission is the mantra of today's nurse manager.
 

This new spin on employee exploitation, while just beginning to be recognized by nurses is, or should be, of great concern to nurses all over this country! Before I go any further let's go straight to the horse's mouth and give one of these companies a chance to explain itself. I interviewed Jeff McKim of the pre-employment screening company Group 1.

Group 1 is based in Irving, Texas and serves Dallas, Fort Worth, San Antonio, and Austin. It has recently expanded its services to Oklahoma, and Arizona and has subscribers from at least 150 hospitals. The types of information Group 1 collects and retains on nurses is exactly what was highlighted in the fictitious interview: personal information, client references, non-client references, licensure and education verifications, local and national criminal reports, and motor vehicle reports. This may sound simplistic and non-threatening. It may even sound like a good program to the uniformed, after all, employers have rights and responsibilities in hiring the best employees they can find. As demonstrated in our discussion of negligent hiring, one could argue that employers could be held liable if they hired known criminals who then later victimize a customer. The problem with these companies, and the information they provide, stems from the great potential to abuse this personal information for purposes not even remotely connected to protecting employers from any type of legal liability.

Mr. McKim pointed out that Groups 1's "sole interest is protecting employers." In the health care industry, managers "simply don't know who their applicants are" and this is the service Group 1 provides - educating hospitals so they can make "informed" hiring decisions. Mr. McKim has been in the private investigating business for over nine years, and an important point is made right there - this is private investigating. Private investigating is not what one normally associates as being part of the hiring process for a job.

Let me stress that there is nothing illegal about what Group 1 does at all. This company simply collects and disseminates information of public record and whatever remarks are made by past employers - factual or opinion. The only legal issues which can arise is if the company communicates false information which is defamatory in nature, and we have already discussed just how difficult it is for a nurse to prove they have been victimized in this manner. In fact, when it comes to the reporting process, whether or not a given manager's remarks are true or false has no bearing at all. Group 1 has no way of even verifying this information. What Group 1 does have is the ability to shield hospital managers from lawsuits stemming from blackballing and defaming professional registered nurses.

Mr. McKim enthusiastically explained to me how their reporting essentially falls under the same category of legality as the Fair Credit Report Act. A nurse who is refused employment based upon a Group 1 report is supposed to be provided with a copy of that report free of charge and given the opportunity to challenge it. If Group 1, or the defaming hospital, refuse to change or correct the report then the nurse must proceed with legal action. Mr. McKim added, "And if a hospital makes an employment decision based on a Group 1 report they can't be sued, the employee must sue Group 1." Mr. McKim was proud of his company's record of only having to settle one case, "and that was for a clerical error." Additionally, any violation of the law by this corporate entity would fall under federal law which means the case must be filed in Federal Court. McKim, barely able to contain himself, added, "This raises both the level of proof required (by the nurse) and the expense of the litigation." If the expense and difficulty of winning such a suit isn't enough to stop the nurse consider that filing in federal court will also significantly delay any decision as it usually takes a minimum of three years to navigate the federal court system. This time delay is particularly hard on a nurse searching for a job and trying to pay her bills, and often discourages a nurse from filing suit to begin with.

When I asked how much money Group 1 charges it subscribing hospitals McKim would only answer that "it varies on the type of subscription program." He would not give me a price or a price range. Nor would he tell me exactly what it cost for an employee to get a copy of their own report. When I mentioned that in order to get a copy of my credit report it cost me $8 dollars, he said "that is about right." I'm not totally sure just what he meant by this statement, but a fellow colleague, who has asked to remain anonymous for fear of retribution, reported to me that her hospital's subscription to Group 1 costs around $800 annually, and for a nurse to obtain a copy of their own report it costs $25 dollars.

So let's review for a moment. If you're blackballed, for whatever reason - legitimate or not, you are supposed to be provided with your pre-employment screening report as required by federal law. So, just how often do you think managers are honest about the reasons you were denied employment - if they give you any reason at all. Nurses in general simply aren't told factual reasons for being denied employment. I was turned down for a job I applied for seven times. I was told I wasn't qualified, but when I investigated I found out that on five of those seven times the hospital had hired nurses with less qualifications than I had - the real reason was they didn't like my writing and who could blame them, I expose the rats for who they are.

Assuming you're smart enough to see through your employer's charade as to why you were denied employment, and you're aware that a company like Group 1 supplied a pre-employment screening, you must then cough up the money to purchase that report. If you discover you have been defamed you must cough up the money to go to court and fight it. As you can see from our previous discussion, the deck is stacked in favor of the employer when it comes to defamation and the resulting employment discrimination. Keep in mind that nurses faced with this situation are usually unemployed and can't afford legal representation - employers and pre-employment screening companies know this all too well. The odds of them getting sued are low, and the odds of a nurse winning are low, so they could care less if they exploit or abuse you.
 

Having just looked at some raw numbers let's take a critical view of employment evaluations which are given to us by our nursing managers. When can any of you remember when you were evaluated by someone actually observing your work performance? This, of course, has always been a major problem with subjective employment evaluations and opinions, not facts, are frequently passed on to prospective employers or pre-employment screening companies. Often these opinions have nothing to do with work performance and are based on the popularity game between colleagues and managers. If you kiss enough butt you'll pass the test, and as long as you shut up and don't complain you will be guaranteed that new job. My personal experience has been that the worst performers in our profession are frequent recipients of promotions and perks as they don't question management on pertinent issues such as staffing ratios - the game goes on.....

To demonstrate with statistics just how valid reference checks and pre-employment screenings are in predicting job performance, consider the research of Reilly and Chao. This team discovered only a 14% correlation between these reports and an employee's actual performance. Ryan and Sackett noted that pre-employment screenings are merely "screen-out" approaches to hiring - rather than looking for anything positive about an employee, the manager does her best to find the slightest reason to disqualify a potential employee. Seems to me this fits nicely with management's current theories of practice.

Exploitation, and abuse. Search and destroy. These are the tactics employers are using in today's hospital with regard to their treatment of professional registered nurse. Now we have an entire industry springing forth to meet this insatiable demand. An industry geared to private investigation of nurses. An industry geared to destroying careers.

It's time to wake up as a profession! Become informed about your institution's hiring practices! Find out if they subscribe to pre-employment screening companies, get your report, and contest it if contains misinformation! Unionize! Form a collective voice! Lobby against these unfair labor practices! Your elected representatives are waiting to hear from you, and only you can stress the importance of personal privacy when it comes to being denied a fair application for employment! Maintain you own employment file to counter the lies which management may perpetrate against you! Save your glowing evaluations. Save those letters from your patients and family members. Solicit positive employment references from trusted and respected colleagues. Protect yourself, and remember, your management will not do this for you. Nurses had better get together to fight this type of exploitation, or they may very well find themselves looking for that job collecting trash....
 

References:

Barrett, G. V. & Kernan, M. C. (1987). Performance Appraisal and Terminations: A Review of Court Decisions Since Brito v. Zia with Implications for Personnel Practices. Personnel Psychology, 40(3), 489-503.

Reilly, R. R., & Chao, G. T. (1982). Validity and Fairness of Some Alternative Employee Selection Procedures. Personnel Psychology, 35(1), 1-62.

Ryan, A. M., & Lasek, M. (1991). Negligent Hiring and Defamation: Areas of Liability Related to Pre-Employment Inquires. Personnel Psychology, 44(2), 293-319.

Schreiber, N. E. (1983). Wrongful Termination of At-Will Employees. Massachusetts Law Review, 68, 22-35.

Stieber, J. (1984). Most U.S. Workers Still May Be Fired Under the Employment At-Will Doctrine. Monthly Labor Review, 107(5), 34-38.