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HR MATTERS E-TIPS
Published by Personnel Policy Service, Inc.
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THIS WEEK’S TIP: Limiting 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 the employer 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.
* What is Negligent Hiring? *
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, 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 preemployment investigation); and
3. That the employer 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 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.
Similarly, in Vinci v. Las Vegas Sands, Inc., 984 P.2d 750 (Nev. 1999),
the Nevada Supreme Court determined that the employer could not be
held liable for negligent hiring since there was no evidence that it failed
to conduct a reasonable background check.
* Simple Steps to Prevent Claims *
Clearly, the best way to limit negligent hiring claims is to follow common
sense 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 eight steps:
1. Train your interviewers. Every interviewer should be familiar with
your hiring policy and know what types of background checks are
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
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
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.
* Better Safe than Sorry *
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 avoid a negligent hiring
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on negligent hiring in Hiring, Chapter 202,
notes 11 and 21.
YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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