Negligent Hiring
Definition: An employer hires an applicant without properly confirming the information provided on the employment application, and it is later discovered that the individual has a background indicating a propensity for misconduct on the job, if the employee commits a crime while on the job at a later date, the employer could be held liable in a lawsuit.
Other considerations:
Under the doctrine of "respondeat superior", employers are responsible for their employees while the employee is working at the direction of the company and acting within the scope of their employment.
Negligent hiring is much different. Negligent hiring typically refers to an employer's obligation not to hire an applicant that they know, or should have known, was likely to display conduct against other individuals or otherwise subject employees, clients, visitor's, or the general public to actions which can create a legal liability.
A major reason employers conduct an investigation into an applicant's background is to ensure that the person is qualified for the position under consideration and to fit in with the other employees. However, there is another even more important reason to conduct a thorough inquiry.
Negligent hiring litigation is a growing problem. Employers have a legal duty to make a reasonable investigation into an applicant's fitness before they are hired. Damages are awarded against employers because of negligence and failure to perform a reasonable search into the potential employee's background prior to hiring. Employers have a duty to check criminal records, and possibly other records, of employees who have, or will have, contact with the public and coworkers.
Reasonable investigation refers to the level of search into a person's background that a reasonably prudent person would exercise during the hiring process. Negligent hiring has everything to do with the failure to exercise reasonable care in the hiring process.
Three significant points to keep in mind:
- Negligent hiring and all its ramifications also pertain to volunteers.
There are many religious, educational, and community organizations
that appoint volunteers to perform a variety of duties within the
respective organization.
- There is a correlation with the responsibilities and trust
given to an employee or volunteer and your efforts to investigate
the person's background before hiring.
- Employers also need to be aware of their legal liability with regard
to negligent retention. An employer can be liable for the actions
of an employee or volunteer after the employer became aware of the
employee's unsuitability, and failing to act on that knowledge by
properly disciplining the employee or volunteer, which may include
termination.
Examples:
Nursing Home - Sexual Assault on Patient: Negligent hiring, failure to do adequate backgrounds check on orderly's training and criminal record. (Fisher v. Beverly Enterprises, USDC, E.D. Arkansas, No J-C-83-201, 8/66). Judgment - $150,000.
Apartment Building - Tenant Rape: Negligent hiring of unfit employee, prior crimes. (Keyes v. Dalewood Assoc., USDC New York, No. 81 - Civ. 162). Judgment - $1,500,000.
Airport Parking Lot - Robbery, Assault and Sexual Abuses: Negligent hiring, failure to investigate criminal background or prior conviction, prior crimes. (Kanne v. Burns International Security, Inc., California, Los Angeles Co. Superior Ct., No. SWC 61883, 5/84). Settlement - $951,000.
Shopping Center - Employee Rape: Negligent hiring, failure to do background check on janitor (a convicted sexual offender), failure to provide daytime security. (Christensen v. Larimer Square Associates, Colorado, Denver District Court No. 84CV9172, 3/86). Settlement - $812,500.
Retail Business - Wrongful Death: Negligent hiring, inadequate training and supervision of guard. (Duarte v. A.J. Bayless Inc., Arizona, Maricopa Co. Superior CT, No. 480320). Settlement - $500,000.
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