05/ 01/ 2002
by Bill Butcher
Negligent hiring is one of the fastest growing areas of the law. The courts have determined that employers are responsible for protecting their employees and customers from injuries caused by employees whom the employer knows or should have known posed a threat to the safety of others. Persons responsible for hiring place their businesses and themselves in jeopardy of being sued if they do not check out potential employees' backgrounds adequately.
For example, a Texas jury awarded an injured driver $500,000 in damages because a company recruiter failed to check an applicant's driving record. The applicant had received five speeding tickets in the preceding 18 months. A week after the employee began work, he hit several cars while operating a company vehicle. The injured party sued the employer for negligent hiring and prevailed.
Keep in mind that employees are filing more and more negligent hiring claims related to crimes committed by co-workers, supervisors or clients on or off workplace premises. The claims arise out of many forms of workplace violence such as robbery, terrorizing and assault.
According to the U.S. Department of Justice, each year over 1 million individuals become victims of violent crimes while working. Each one of those incidents represents a potential negligent hiring lawsuit to employers.
So how far do you have to go in checking out new employees? How far do you have to go to protect yourself from a lawsuit? A rule of thumb is that the more public exposure associated with a position, the more extensive the background inquiry. Home care providers, taxi drivers, office and home cleaning services, commercial repairmen, home product demonstrators, hotel/motel employees, commercial drivers, security guards, financial planners and bank employees are all positions that require in-depth background checks.
Here are reasonable and lawful steps that you can take to protect yourself:
- Request conviction information on applications and during interviews. Then check out their answers by conducting a criminal check to determine if they left anything out. It is important to remember when doing this that a statewide criminal check does not include federal convictions. A separate federal criminal check should be conducted as well.
- Check out gaps in the record; probe. Specifically ask, "What did you do from this date to that one?" when there is a time gap.
- Question unclear statements or answers. Ask references or previous employers to clear up responses that you feel are suspect.
- Document all inquiries in writing. If you conduct background investigations yourself, take good notes and keep them for the record. If you hire a professional, be sure that you receive a written report.
- If an applicant volunteers that he or she was hospitalized for mental or emotional problems, pursue the matter. If you have reason to believe that the person's past behavior could be detrimental, ask for a medical release in writing. Not hiring an applicant merely because of a history of mental or emotional problems can lead to claims of discrimination against a disabled person. The reason for not hiring someone must be that his or her mental or emotional problems would continue to pose a threat to the organization or to people.
- Finally, turn down applicants convicted of a crime or those with a history of injuring people when they could possibly repeat their offense in a new job situation.
