hr matters: negligent hiring
Protecting Against Negligent Hiring Claims
Most HR professionals know that reference checking and work
history verification are fundamental steps in applicant screening. What many
may not realize is that these simple steps not only weed out bad candidates
but also may help protect you from negligent hiring exposure if there is an
incident of workplace misconduct or violence later.
Unfortunately, you may be tempted to skip these checks in
order to make a quick hiring decision. However, the consequences of omitting
them can be devastating and range from huge monetary settlements and bad
publicity to, in the worst-case scenarios, loss of life. You can help
prevent these problems and limit your organization's exposure by taking a
few basic precautions in checking candidate backgrounds.
The legal theory of negligent hiring is based on the premise
that an employer can be liable for the violent acts or wrongdoing of its
employees if it did not investigate adequately their backgrounds or
qualifications. Negligent hiring claims often involve employees both who are
in a position to pose a threat of injury to the public (such as a driver or
delivery person) and who subsequently attack another employee or an outside
third party (such as a client or customer).
To establish negligent hiring, the harmed person
generally must show:
1. That the employer did not exercise reasonable care in hiring the employee
(for example, by talking to former employers);
2. That the employee had dangerous tendencies which should have been
apparent if the employer had exercised reasonable care (such as by
conducting an adequate pre-employment investigation); and
3. That the employer placed the employee in a position where others could be
injured.
So, for example, in Board of Cty. Commissioners v. Brown,
520 U.S. 397 (1997), the Supreme Court determined that the plaintiff who was
assaulted by a deputy had to establish that the sheriff did not make
preemployment inquiries to determine the facts underlying the misdemeanors
on a deputy's criminal record. In addition, the plaintiff also had to show
that if the inquiries had been made, they would have revealed a risk that
the deputy would use excessive force against the public.
The employer's legal liability typically depends on the
circumstances leading up to the employee's misconduct and on whether the
employee was acting within the scope of his employment duties. For example,
in Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932 (N.Y. 1999), a
hospital was not liable for the negligent hiring of an employee who was
accused of sexually assaulting a patient. The New York Court of Appeals
found that the hospital acted with reasonable care in hiring and supervising
the employee and that its management did not authorize, participate in,
consent to, or ratify the employee's alleged conduct.
1. Train your interviewers. Every interviewer should be familiar with your
hiring policy and know what types of background checks are required.
2. Have each applicant fill out an application form, which you carefully
review. Pay particular attention to gaps in employment and inconsistencies,
and require references.
3. Question the candidate about any gaps in work history. Make sure you have
an accurate timeline of past employment dates and know what happened during
any periods of unemployment.
4. Check references. At a minimum, confirm the applicant's dates of
employment and position. Try to get substantive information about past
performance and disciplinary records.
5. Ask about criminal convictions. Remember, however, that asking about
arrest information (as opposed to convictions) could violate state
discrimination laws.
6. Perform additional background checks appropriate to the position being
sought. For example, consider credit checks on candidates who will handle
money and review the motor vehicle records of potential drivers.
7. Conduct criminal conviction checks on candidates who will be in
"positions of confidence." For example, if you are filling a position in
which the employee would work in a customer's home, with impaired
individuals, or in a daycare center or hospital, a criminal check is
appropriate (and required by some state laws). Make sure these checks cover
each jurisdiction where the candidate has lived.
8. Document the steps you take to investigate the candidate. Even if you
can't get in touch with a reference or if a background check does not
produce any information, make sure you have a clear record of the steps you
took. Remember, too, if you ask a consumer reporting agency to conduct any
of your investigations, you must comply with the notice and disclosure
requirements of the Fair Credit Reporting Act.
As a practical matter, most negligent hiring claims involve
extreme but isolated incidents of employee violent conduct. However, the
risks of having to defend against these claims, and the negative publicity
surrounding them, far outweighs the time and cost of taking a few simple
steps to prevent them.
As a general rule, your first line of defense is to weed out
high-risk applicants before making hiring decisions. Your last line is to
have clear documentation showing you took the reasonable steps a prudent
employer is expected to take to prevent a negligent hiring action.
Reprinted with permission from HR Matters E-Tips, copyright
Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR
Policy and Employment Law Compliance Experts for over 30 years,
1-800-437-3735. Sign up for your free E-Tips subscription at
http://www.ppspublishers.com/hrmetips.htm. This article is not intended as
legal advice. Readers are encouraged to seek appropriate legal or other
professional advice.
Return to Top