Hidden liability: Understand the risks of negligent hiring

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in Hiring,Human Resources

You know there are certain questions you just can’t ask job applicants. Typically, they expose your organization to charges of hiring bias. But using discretion in the hiring process doesn’t mean you should give up on the practice of thoroughly investigating the background of candidates for certain jobs in which a rogue worker could harm other people.

In fact, if you fail to do background checks on those candidates, you could make yourself vulnerable to a negligent-hiring lawsuit by any worker or customer who has been hurt by a violent employee.

Many court decisions have held that an employer has a “duty of care” to protect workers, customers and clients from injury caused by an unfit employee who an employer knew (or should have known) posed a risk.

For an employer to be held liable for negligent hiring, the plaintiff must prove that an employee intentionally injured a co-worker, customer or client and that:

  • Few, if any, pre-employment checks were performed, and that if they had been, those checks would have likely revealed a worker’s propensity toward violence, or
  • The employer, knowing a worker’s propensity toward violence, didn’t provide proper supervision and security.

Most negligent hiring lawsuits arise when an employee has injured a third party. For example, a doctor at a West Virginia hospital generated 122 lawsuits from surgical errors in just seven months. A jury found the hospital guilty of “gross negligence” in hiring, and victims were awarded huge damages, which led to the hospital’s closing.

Similarly, the Catholic Church was found liable for a Long Island youth minister who repeatedly raped a young man and woman. A jury found the church guilty of “reckless disregard for the safety of others” when it hired the man. It awarded $11.45 million to the pair and ruled the church was 30% responsible.

Note: In 2012, the EEOC issued important guidance indicating that many criminal background check procedures may violate anti-discrimination laws because they may have a disparate impact on minorities. Learn more in "EEOC urges caution on criminal background checks." Negli­­gent hiring standards vary from state to state. Have your attorney review your background checking procedures to ensure they comply with state law.

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