How to Help Protect Yourself Against Negligent Hiring Lawsuits
What is Negligent Hiring?
The legal theory of negligent hiring is based on the premise that an employer can be liable for the violent acts or wrongdoing of its employees if it did not investigate adequately their backgrounds or qualifications.
Negligent hiring claims often involve employees both who are in a position to pose a threat of injury to the public (such as a sales or service person, driver or delivery person) and who subsequently attack another employee or an outside third party (such as a client or customer).
Negligent hiring refers to the hiring of a person that the employer knows or should have known, possesses some attribute of character or prior conduct that would create an undue risk or harm to others in carrying out his or her employment responsibilities.
To establish negligent hiring, the harmed person generally must show:
- That the employer did not exercise reasonable care in hiring the employee (for example, by talking to former employers);
- That the employee had dangerous tendencies which should have been apparent if the employer had exercised reasonable care (such as by conducting an adequate pre employment investigation); and
- That the employer placed the employee in a position where others could be injured.
The employer’s legal liability typically depends on the circumstances leading up to the employee’s misconduct and on whether the employee was acting within the scope of his employment duties.
On Monday, April 22, 2002, a large retail department store that operates several locations throughout Florida and also offers in-home services such as television and appliance repair and duct cleaning, was sued for negligent hiring.
The suit alleges that the company failed to conduct a background check of an air-conditioning contractor, who allegedly murdered a customer, and, therefore, violated Florida's negligent-hiring statute, which gives employers protection from negligent-hiring claims as long as companies perform a background investigation of employees.
A record check of the contractor's background by law enforcement revealed that the contractor had served 12 years in prison for rape.
In order to reduce their liability for negligent hiring lawsuits, employers should implement background investigations of their employees and contractors in accordance with Florida Statute.
Other Case Examples
In Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932 (N.Y. 1999), a hospital was not liable for the negligent hiring of an employee who was accused of sexually assaulting a patient.
The New York Court of Appeals found that the hospital acted with reasonable care in hiring and supervising the employee and that its management did not authorize, participate in, consent to, or ratify the employee’s alleged conduct.
Similarly, in Vinci v. Las Vegas Sands, Inc., 984 P.2d 750 (Nev. 1999), the Nevada Supreme Court determined that the employer could not be held liable for negligent hiring since there was no evidence that it failed to conduct a reasonable background check.
Past misconduct of the employee is a primary indicator that could lead to employer's negligence.
Courts also consider the nature of work for which the employee is hired in determining negligence or the degree thereof.
Therefore, the standard of due diligence expected of an employer in its hiring practices generally depends on the employee's anticipated contact with others in carrying out the normal duties of employment.
The employer's required "standard of care" increases substantially when the employer anticipates the employee will have greater contact with the public or access to personal information of customers.
This enhanced duty of care is also triggered when the nature of the employment fosters close contact and a special relationship between particular persons and the employee.
A plaintiff who alleges negligent hiring must first establish that the employer owed the plaintiff a duty to hire and retain only fit employees. A duty exists when there is some association or connection between plaintiff and employer.
Courts have found such connections and corresponding duties in several situations such as: business-customer relationships, student-school or district relationships, landlords-tenants, prison officials-prisoners, youth organization-youth, and housing authority-tenants.
After determining that a duty is owed, the court then considers the nature of the employer's responsibility.
The extent of this responsibility is based on the nature and frequency of contact with others.
Therefore, it is enhanced if the contact represents a potential risk of harm to a third party.
For example, counselors generally have regular, intimate contact with those they counsel; who may be emotionally fragile and vulnerable.
This is one good reason why employers of counselors should exercise considerable care when making hiring decisions.
The last factor that a court considers in determining whether an employer has breached this duty is whether or not any evidence existed prior to and at the time of the hiring. In some jurisdictions the specific injury sustained by the plaintiff need not be foreseeable as long as there was a foreseeable risk of some injury.
In these cases, the requirement of pre-employment investigation is well-established.
Reference to case law is instructive, as is any evidence in the case at hand, that the employer has a reasonable basis to suspect that an employee might represent a problem.
Depending upon the seriousness of a suspected problem and/or frequency of occurrence, it might be reasonable for an employer to conduct a review of an employee's complete training background.
This is an important issue in a negligent hiring action since the defendant is held accountable for knowledge held; or which reasonably should have been known at the time of the hiring.
(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;
(d) Obtaining, with written authorization from the prospective employee, a check of the driver's license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or (e) Interviewing the prospective employee.
(2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement, a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request.
(3) The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee.
768.096 - Employer Presumption Against Negligent Hiring.
The investigation should include a criminal background check, a reference check, completion of a job application that inquiries into prior criminal convictions, a driver's license check (if applicable), and an interview.
For your information, the following is Florida Statute768.096 verbatim:
(1) In a civil action for the death of, or injury of damage to, a third person caused by the intentional tort of an employee, such employee's employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general.
A background investigation under this section must include:
(a) Obtaining a criminal background investigation on the prospective employee under subsection (2);
(b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;
(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;
(d) Obtaining, with written authorization from the prospective employee, a check of the driver's license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or (e) Interviewing the prospective employee.
(2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement, a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request.
(3) The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee.
Simple Steps to Prevent Claims
Clearly, the best way to limit negligent hiring claims is to follow common sense procedures to get as much information from the candidate as you can and then to verify the information before offering a position.
To accomplish these goals, consider taking the following eight steps:
- Train your interviewers. Every interviewer should be familiar with your hiring policy and know what types of background checks are required.
- Have each applicant fill out an application form which you carefully review. Pay particular attention to gaps in employment and inconsistencies, and require references.
- Question the candidate about any gaps in work history. Make sure you have an accurate timeline of past employment dates and know what happened during any periods of unemployment.
- Check references. At a minimum, confirm the applicant’s dates of employment and position. Try to get substantive information about past performance and disciplinary records.
- Ask about criminal convictions. Remember, however, that asking about arrest information (as opposed to convictions) could violate state discrimination laws.
- Perform additional background checks appropriate to the position being sought. For example, consider credit checks on candidates who will handle money and review the motor vehicle records of potential drivers at least semi-annually.
- Conduct criminal conviction checks on candidates who will be in “positions of confidence.” For example, if you are filling a position in which the employee would have access to the personal information of customers,work in a customer’s home, with impaired individuals, or in a daycare center or hospital, a criminal check is appropriate (and required by some state laws). Make sure these checks cover each jurisdiction where the candidate has lived.
- Document the steps you take to investigate the candidate.
Even if you can’t get in touch with a reference or if a background check does not produce any information, make sure you have a clear record of the efforts you made.