Today the world is quite a litigious place. Given that fact, a new concern for employers is the expanding concept of negligent hiring. Under the theory, employers who know or should have known that an employee is unfit for a position may be liable for the employee’s criminal or devious behavior. Negligent hiring is now recognized as a cause of action in more than thirty states.
Generally, an employer has a duty to exercise reasonable care when hiring employees who, if incompetent or unreliable, might cause a risk of injury to the public or fellow employees by reason of court cases such as an employee who used a pass key to enter an apartment and attack a tenant and a taxi driver who raped a rider in his cab.
A plaintiff has to prove three things in negligent hiring cases:
1) the employee who caused the injury was unfit for hiring or retention;
2) the employer’s or retention of the unfit employee was the cause of the plaintiff’s injuries; and
3) the employer knew, or should have known, the unfitness.
To protect against negligent hiring, several steps should be applied in screening candidates. These steps include:
*Review applicable federal, state and local laws to ensure that your process conforms to all such laws.
*Comply with federal, state and local fair credit reporting laws if a credit check is conducted.
*Look for gaps in employment and other suspicious or unusual entries in candidate’s applications.
*Call each reference listed on the application.
*Obtain a signed waiver and consent form from each applicant to conduct a full reference check.
*Document all information received, including licenses, diplomas, and certificates, as well as efforts to obtain this information if it is was not available.
*Require all employees who have served in the armed forces to provide a copy of their DD-214 stating they were discharged honorably.