If you fail to do background checks on applicants for certain positions, you could make yourself vulnerable to a negligent-hiring lawsuit by any worker or customer who’s been hurt by a violent employee. You should check applicants’ backgrounds for positions such as day care worker, security guard and sales representative.
A number of court decisions have established the principle 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 reasonably could have been expected to know) posed a risk.
For an employer to be held liable for negligent hiring, the plaintiff must prove that (1) an employee intentionally injured a co-worker, customer or client; (2) 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 violent behavior; or (3) the employer, knowing a worker’s propensity toward violence, did not provide proper supervision and security.
The following cases illustrate the hazards of negligent hiring. Both involve situations in which an employee injured a third party by an intentional tort.
During a mere seven months with Putnam General in West Virginia, Dr. John King, osteopathic surgeon, generated lawsuits from 122 patients alleging he injured them during surgery. In a Putnam County Circuit Court trial, a jury found the hospital guilty of “wantonness, recklessness and gross negligence” in the way it reviewed King’s qualifications before offering him a position on staff. The ruling allowed plaintiffs in the numerous suits against him to recover punitive as well as compensatory damages.
Putnam General argued that it would have taken the FBI to uncover all of King’s past lies and mistakes. The hospital had done a thorough job of examining King’s credentials, the defense argued, but all of the documents surrounding their decision had been lost. That loss, the judge said during jury instructions, was critical to the case.
Faced with the prospect of multiple millions in damages, Hospital Corporation of America, which owned Putnam General, decided to close the facility.
One of the largest judgments in a child sexual abuse suit involved negligent hiring by the Roman Catholic Church. A Long Island jury awarded $11.45 million in damages to a young man and woman who were repeatedly raped by youth minister, Michael Maiello, as teenagers. The jury deliberated for a full week before finding the Diocese of Rockville Centre, a church in East Meadow and its pastor guilty of “reckless disregard for the safety of others in the negligent hiring and retention” of Maiello. They held the church and pastor liable for 30% of the damages, which meant they would be responsible for the entire amount if Maiello couldn’t foot his part of the bill.
Note: Because the exact standards for a finding of negligent hiring vary from state to state, you should check with an employment attorney familiar with negligence law in your state. An attorney can help you establish policies for proper background checks that comply with employment laws and protect you from liability.
Self-Audit: Negligent Hiring
Answer the following questions to determine whether you have minimized your susceptibility to a negligent-hiring suit:
- Do you customarily conduct a background check when you hire a worker for a “sensitive” position?
- If so, do you adapt the level of the background investigation to the responsibilities of the job in question?
- Do you ask the employee about any gaps or missing information on his or her résumé or application?
- Do you customarily call the applicant’s former employers, who can report any violent tendencies the person may have?
If you answered “No” to any of these questions, you could be liable to charges of negligent hiring.