In recent years, the Georgia courts have significantly expanded employers’ obligations—and therefore potential liability—in the area of negligent hiring and supervision. At the same time, employees and applicants now enjoy significantly expanded privacy rights.
There’s an obvious tension between the duty of care imposed on employers to avoid hiring and retaining dangerous or incompetent workers and the similarly evolving legal concept of individual privacy. That makes it more important than ever for employers to pay close attention to their application, hiring and background-check policies and practices.
‘Knew or should have known’
Recent court decisions show that Georgia courts are increasingly willing to hold employers responsible for injuries or other harm to customers, the public and other workers caused by employees (even former employees) who the employer knew or should have known posed a threat.
For instance, the Georgia Supreme Court recently held that this “knew or should have known” standard can be met when an employer fails to conduct a —even when there is no statutory obligation to conduct one for the position in question.
Similarly, the Georgia Court of Appeals recently upheld a jury verdict in excess of $15 million in a negligent retention case in which an employer failed to conduct a background check on an employee during the course of a workplace investigation. In the jury’s view, a background check would have revealed that the employee posed a risk of harm.
Most recently, the Georgia Court of Appeals ruled that a jury could hold an employer liable for negligent hiring after the employer failed to conduct a background check on a door-to-door salesperson who had been convicted of burglary and kidnapping in South Carolina in 1979, sentenced to life in prison and paroled in 1995. Interestingly, the most common background checks conducted by Georgia employers would not reveal out-of-state convictions.
Complicating matters further, the Georgia Supreme Court recently let stand a lower court decision that went as far as to extend liability to a former employer who allegedly contributed to a subsequent employer’s hiring of a dangerous or incompetent employee.
Conducting background checks
Georgia courts’ recent rulings in the area of negligent hiring/retention make clear that employers seeking to avoid liability should conduct background checks on applicants for certain positions that the courts have described as “sensitive.” Sensitive here means jobs in which it could be foreseeable that a dangerous or incompetent employee could injure or otherwise harm a third party. It’s important to conduct background checks for those positions even if no law requires them.
Georgia employers should follow these steps to conduct proper background checks:
- Gather information such as the applicant’s full name, current address, Social Security number, work history (including names and addresses of former employers), job titles, dates of employment, reasons for leaving and military records. Follow up on any significant gaps.
- When relevant to the position, check the applicant’s credit, as well as records on education, employment and driving history. Bear in mind that an employer can be held liable for negligent hiring/retention even when an employee caused harm that did not physically injure someone—such as theft of funds.
- Check the applicant’s criminal record. If an applicant lived in (or very near) another state, check that state, too.
Keep in mind that the law does not impose liability on employers every time an employee injures or harms a third party. Rather, the standard is whether the employer acted reasonably to avoid hiring or retaining a dangerous or incompetent employee in a sensitive position.
To meet that standard, employers should tailor their background checks to the position in question and the specific types of injuries or harm that could be caused by hiring a dangerous or incompetent person.
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