When news reports surfaced in December that a New Jersey hospital nurse admitted to killing 30 to 40 patients in his 14-year career, a pattern of laxemerged.
The nurse had been either questioned or fired from several hospitals and nursing facilities in New Jersey and other, neighboring states for misusing dangerous drugs. But his record with the state licensing board remained clean, and various hospitals hired him with no word of his dangerous misconduct or firings.
HR representatives at three medical facilities told The New York Times that they glossed over his reference checks. Hospitals are loath to say anything negative, admitted one hospital official. "We're a litigious society," she told the Times.
This case highlights a key legal threat for employers: Your organization can be held liable for negligent hiring if it breaches its duty in selecting competent and fit employees.
Courts have established the principle that employers have a "duty of care" to protect workers, customers and clients from injury caused by an employee who the organization knew (or reasonably could have known) posed a risk.
When an employee intentionally injures a co-worker or customer, you can be liable for negligent hiring if the injured person can prove either of these things:
- You performed few, if any, pre-employment checks. And if they had been performed, the checks would have revealed the employee's questionable past, or
- Knowing a worker's potential for misconduct or violence, you didn't provide proper supervision and security.
The lesson: Always perform complete background checks (criminal history, education verification, reference checks, drug test and credit check) for all safety-sensitive employees.
That includes employees operating vehicles or dangerous equipment, employees with security access, employees carrying weapons, employees with access to drugs or employees who interact with children or other vulnerable people.
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- Good faith wins court cases! Don't use investigation to trap employee
- Handle supervisor harassment with a good policy, timely investigation and independent review
- Apply common sense in determining 'Substantial impairment'
- Do not assume that only U.S. citizens are authorized to work here