Federal Law > Hiring Employees > Negligent Hiring

Negligent Hiring


In recent years the number of negligent hiring lawsuits being filed against employers is increasing. Ordinarily, this type of lawsuit is filed by a third party who is injured by your employee. The third party claims that you failed to conduct a thorough background check before hiring the employee and if there had been such an investigation, the employee would never have been hired.1 For example, lawsuits could include circumstances like the following:

1. A hospital's failure to discover that a nurse was discharged by a prior employer because of unsafe handling of patients - lawsuit filed by a patient allegedly injured by the nurse;

2. A company's failure to discover a security guard's prior record of sex crimes - lawsuit filed by a customer allegedly molested by the security guard;

3. An apartment owner's failure to discover prior burglary convictions of a maintenance employee who had the pass key to all apartments - lawsuit filed by a tenant allegedly burglarized by the employee; and

4. The hiring of the an employee by a security firm which handled large sums of money without doing a thorough investigation of the employee's job history - lawsuit filed by a client from whom the employee allegedly stole a substantial sum of money.

Avoiding Liability. In order to avoid liability, a thorough background check is the best defense against a negligent hiring lawsuit. As a consequence, an employer would be wise to keep in mind the following points:

1. Carefully review all information provided by a job applicant.

2. Pay special attention to gaps between jobs, the failure of an applicant to answer all questions, or "strange" answers.

3. Obtain a consent and release and a waiver to gather information from former employers. Even if the former employers have a policy against releasing the information, a consent and release documents your effort to obtain such information.

4. Contact personal references provided by the applicant and thoroughly check the information provided.

5. Verify the chronologies offered by applicants to ensure they check out in the appropriate sequence.

6. In cases which may involve security or safety-sensitive positions, determine whether an applicant has a criminal record.

7. Carefully document the efforts you have made and the information obtained.

By following the above suggestions, you may not only avoid a negligent hiring claim, but you may also avoid a poor employee. All too often employers, saddled with an expensive employment lawsuit, complain that the difficulties and expenses associated with a lawsuit never would have happened if they hadn't hired the person in the first place. Employment screening is critical, not only to hire the right or best person for the vacancy, but also to ensure that you do not hire the wrong person.

Hiring the best person. In order to hire the best person for the job, it is important to be a good listener. Although you may want to sell the company and the job position, it is important to listen carefully to the applicant's story, including the applicant's history and experience. You should require the applicant to give you as much information as possible, and look for any holes in the applicant's employment or educational history.

Applications should be structured in such a way that the applicant is required to provide detailed explanations to critical employment questions such as prior work history or education related to the position sought. If someone left a previous employer for "personal reasons" ask for an explanation of those reasons and continue to prod gently and appropriately until you are satisfied you understand the answer.

You should obtain information about the employee's wages and benefits to ensure that you are not going to be putting the person in a situation where he or she might grow even more dissatisfied about compensation than in the previous position. Also, information should be solicited concerning the names of previous supervisors. If the employee cannot recall the supervisor's name, there is most likely a problem with this applicant.

In soliciting the reasons for leaving previous employment, many employers design questions to avoid the simple and somewhat evasive response of "personal reasons." An employer may inquire whether an employee has ever been dismissed or asked to resign from a previous position. If the response is in the affirmative, the employee should be asked to explain, in writing, on the application and orally in the interview, the background concerning the affirmative response.

Questions should be structured to encourage the applicant to divulge information about attitudes concerning how employees and employers should work with each other. From these questions, an employer should be able to decipher the applicant's willingness to be a team player in the employment relationship. The employer should attempt to assess whether the applicant will cooperate with the employer on the terms and conditions of employment, communications, and other facets of the relationship which can be the source of employment disputes. Certainly, an employer should be put on alert if the applicant's attitude toward the employment relationship appears to be one of competition or confrontation as opposed to mutual cooperation.

  1. See, e.g., Carlson v. Wackenhut Corporation, 868 P.2d 882 (Wash Ct. App. 1994); J.V. v. Victory Tabernacle Baptist Church, 372 S.E.2d 391 (1988).
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