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Avoiding Negligent Hiring

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.

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