What Are Negligent Hiring Claims?
Negligent hiring claims are preventable if employers do their job which is to ensure that employees and customers have a well-organized, safe work environment. In this work environment, people have a right to a reasonable expectation that they will not be injured or harmed. Customers have the right to the same expectation as employees.
If a hiring decision made by an employer results in an employee who injures or harms a customer, coworker or any individual who comes into contact with the employee through their work, the employer can be charged with negligent hiring.
When Employers Are Vulnerable to a Negligent Hiring Claim
A negligent hiring claim is made when the filer believes that the employer should have known about the employee’s background of violent behavior. In these claims, the filer attempts to prove that the injurious behavior was to be expected based on past behavior that demonstrated that the employee was dangerous, untrustworthy, a sexual predator, or a thief, to name a few possible claims.
Employers are most vulnerable to negligent hiring claims if they fail to do the following:
- Do a criminal background check on potential employees. According to L. Diane Tindall, attorney-at-law, "April 25, 2012, Enforcement Guidance issued by the EEOC takes the position that an employer’s use of an individual’s arrest or conviction records in making employment decisions will violate Title VII in some circumstances." Employers need a strictly followed policy that examines criminal records on a case-by-case basis and to consult an attorney.)
- Check employment and personal references.
- Check employment history and attempt to speak with former supervisors.
- Validate college degrees.
- Perform drug screening in particular industries including potentially hazardous manufacturing jobs.
- Require physicals in some occupations including such jobs as truck driving or any job that entails a lot of strenuous physical activity.
- Perform credit checks for some jobs especially those involving money.
- Check driving records and history for some occupations including truck driving and any job that requires the use of company cars or machinery.
- Confirm that other claims made by the applicant, such as why they left a prior employer, why they had a two-year employment gap, why they worked at four companies in two years, and so forth, are true.
Where Negligent Hiring Claims Are Prevalent
A negligent hiring claim is more common in some industries including caregiving to dependent children or adults, and these specific industries:
- Real estate agents (who have keys or know pass-lock combinations)
- Rental apartment personnel
- Condominium personnel
- Delivery persons
- Service and maintenance persons
- Nursing and convalescent home workers
- Home health care aides
- Utility personnel
How an Employer Can Be Potentially Liable
An increasing number of states and worldwide jurisdictions have laws about what makes an employer a potential negligent hiring lawsuit target including these laws:
- The person injuring or harming another person must be employed by the firm.
- The employee was guilty of causing harm doing damage to, or injuring the complaining party.
- The employer knew or should have known of the propensity of the employee to harm.
- The employer was negligent in hiring the employee by not exercising appropriate background checking activities that might have revealed the employee’s propensity for harming coworkers or customers.
Examples of Potential Negligent Hiring Claims
Below are examples of the types of claims that have been filed and won against employers:
- An employee rapes a coworker. On review, it is discovered that the employee is a registered sex offender who has served prison time for sexual assault. The employer was liable because this information was discoverable with effective background checking.
- An employee assaults his boss, sending the woman to the hospital with severe injuries. When reviewed, the employer is found not to have checked employment references and prior employers where, even superficially, the employer would have discovered that the two prior employers, would not rehire him. A criminal background check would have revealed felony offenses.
- A temporary agency that claimed to do thorough background checking placed an employee as a controller in a finance office. A few months later, the firm discovered that the temp employee had embezzled thousands of dollars. (The temp firm was held liable.)
- At a manufacturing company, the employer began measuring product loss and was shocked at the amount of product that was disappearing before it reached the customer. As a first step, he installed cameras. This was partially successful at stopping the theft—for example, a charitable donation jar that was out of range of the cameras was stolen off of a supervisor's desk. After much investigation, the majority of the thefts were traced back to one employee. He had served time in prison for arson and part of his sentence was to give $100,000 in restitution to the arson target. Because the employer had not done background checking, a partner who received the product sued for damages to their reputation and ability to keep delivery commitments.
While employers must do diligent background checking, they must also perform fair and nondiscriminatory checks. Background checks of people who are candidates for the same job should be the same. A clear connection should exist between the background checks conducted and the requirements of the job or of basic employment.
To avoid the hassle and staff time invested, potential losses of productivity and reputation, and financial damages assigned by courts, employers need to do thorough background checking. You need to know who you are hiring lest they injure your employees or customers in any way.
Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. A worldwide audience reads the site, and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.