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It’s what you don’t know about a job applicant that can hurt you. As
an employer, you can minimize the chance of
negligent hiring claims
by taking a few simple steps to investigate your candidate’s
background.
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HR professionals know that
reference checking and work history verification are fundamental
steps in applicant screening. What many may not realize, however, is
that these simple steps not only weed out bad candidates but also
may help protect the employer from negligent hiring exposure if the
employee is later involved in an incident of workplace violence.
Unfortunately, you may be tempted to skip
these checks in order to make a quick hiring decision. However, the
consequences of shortcutting these simple steps 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 exposure by taking a few basic precautions
in checking your candidates’ backgrounds.
What is Negligent Hiring?
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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 deliveryperson, 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, did not check with former employers); (2) that the
employee had dangerous tendencies which should have been apparent if
the employer had exercised reasonable care; and (3) that the
employer, in fact, placed the employee in a position where others
could be injured.
The employer’s legal liability
typically depends on the circumstances leading up to the employee’s
misdeeds and on whether the employee was acting within the scope of
his employment duties.
Simple Steps to Prevent
Claims
Clearly, the best way to limit
negligent hiring claims is to follow commonsense procedures to get
as much information from the candidate as you can and then to verify
the information before offering a position. To accomplish these
goals, consider taking the following steps:
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Educate your interviewers.
Every interviewer should be familiar with your hiring policy and
know what types of background checks are required.
Have each applicant fill out an
application form which you carefully review.
Pay particular attention to gaps in employment and inconsistencies,
and require references.
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.
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.
Ask about criminal convictions.
Remember, however, that asking about arrest information (as opposed
to convictions) could violate state discrimination laws.
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.
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.
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, 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.
Better Safe than Sorry
As a practical matter, most
negligent hiring claims involve extreme but isolated incidents of
employee violent conduct. However, the risk of being a defendant
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
the high-risk applicants before making hiring decisions.
Your last
line is to have clear documentation showing you took the reasonable
steps a prudent employer would be expected to take to avoid a
negligent hiring action. |
Personnel
Policy Service, Inc.
