What is Negligent Hiring?
When a job puts a person in a position where it is reasonably foreseeable that an unfit person in that position could cause injury to another, a duty arises for the employer to exercise due diligence in hiring to fill that job. If an employee has a past track record that demonstrates that he has a propensity to abuse the level of authority given by such a position and the employer knew or should have known of that past track record by exercising due diligence in his investigation, then the employer may be held liable for damages caused by the employee that he placed in such a position.
What Are Some Examples of Negligent Hiring?
Some examples of this situation might be:
- A trucking company that hires a driver with a long history of speeding and accidents.
- A chemical plant that hires a plant operator with a history of drug or alcohol abuse to run the plant.
- A taxicab company that hires a driver without a license or taxi cab permit.
- A machine shop that hires a welder without a welding license.
- A daycare that hires a daycare worker with a criminal history of child abuse or child molestation.
All of the above are examples of situations where a job obviously places someone in a position where, if the wrong person gets the job, a likelihood of harm is foreseeable. Moreover, there are readily available resources that can and should be utilized to minimize the risk in each situation. If you or someone you know has been injured due to negligent hiring by an employer, call us for a free consultation with one of our negligent hiring attorneys.
What Does ‘Due Diligence’ Mean?
Due diligence means the level of care that a reasonable person would exercise to avoid causing harm to others. It is a legal term used to set a standard of conduct in many different situations. Employers must exercise due diligence in the hiring process.
What is Due Diligence in the Hiring Process?
Many jobs do not have a legally defined standard of what must be done to investigate a potential employee. In many cases, it is largely up to the individual employer to determine what a reasonable person in that situation would do to protect other employees and the public in general. Some of the questions an employer may wish to consider when deciding what constitutes due diligence are:
- What level of authority with the employee have?
- What is the likelihood of the position being abused?
- What is the likelihood of harm if the position is abused?
- What is the likelihood and potential magnitude of the harm if the position is abused?
- Does the law require anything specific for this position?
- How readily available and verifiable is the information about this employee’s track record pertaining to the job?
Once the level of diligence required has been ascertained, then an employer must decide how to fulfill it. Obviously, if there is an industry-specific standard, the employer should follow that. an example of this would be the Federal Department of Transportation Regulations for Commercial Motor Vehicle Drivers. If there are no such requirements, she must look to other resources. Industry standards and industry guidelines published by authoritative organizations, journals, and treatises can be a very good resource for determining what constitutes “due diligence” in a particular field of employment. Hiring an experienced negligent hiring attorney can help you better understand this process.
What Checks Can an Employer Perform in Hiring an Employee?
In this day and age, there are numerous resources readily available to assist an employer in conducting his due diligence investigation. An employer had better educate himself and utilize these tools where appropriate or he may find himself a defendant in a negligent hiring lawsuit. Some examples of these tools are:
- Criminal background checks
- Employment history checks
- Credit history checks
- State and Federal licensing checks
- Driving histories
- Reference calling
- Military record checks
- Bankruptcy filings
- Medical exams and medical record checks
- Drug testing
- Civil Court record checks
- Social medial checks
- Sex offender registry checks
The above tools are just some of the ways in which an employer can look into a prospective employee’s background before hiring the wrong person for the job. A skilled negligent hiring attorney should be familiar with these options and when they should be utilized. Many of these checks can be conducted online for nominal fees or even free. there are also numerous employment screening companies available that can not only do the screen for the employer but also educate the employer on the legal requirements and industry standards. Thus, there really is no excuse for an employer who fails to make use of the various employee-checking options.
What is Negligent Retention?
Negligent retention is keeping an employee in a position after an employer knows or should know of conduct that demonstrates that the employee has the propensity to abuse the authority granted by the position. It is essentially the same thing as negligent hiring except that the employee is already hired and in the position at the time that the employer learns of the offending conduct or the offending conduct the employer should know of occurs after the employee is already in the position. An example of the first scenario above is where a background check erroneously comes back clear and a later rerun shows the error. An example of the second scenario would be where a summer camp counselor is hired and later is charged and convicted of abusing a child.
The Negligent Retention cause of action highlights the need for continual investigation into an employee’s background. Just because you checked a person’s background once and he had no past problems does not mean it is safe to assume that he will always be a model employee. Jobs that place employees in a position of authority that, when abused, are likely to result in foreseeable injury to others require a regular check and not just a one-time screening. It is important that a responsible employer determine how often is considered to be a reasonable time to rely upon a background check before requesting an updated one. Failure to do so can result in a dangerous person being given the means to cause injury. It is much like giving a child a loaded gun.
Negligent Hiring and Negligent Retention Resources & Tools
At Simmons and Fletcher, P.C., we subscribe to services that enable us to run our own criminal background checks, professional licensing checks, civil court record and bankruptcy court filings, sex offender record checks, department of motor vehicle licensing checks, hospital lien checks, property tax record checks, and other screening checks on defendants. Our negligent hiring lawyers also have private investigators at our disposal for a more detailed history and record checks when needed. We can and often do subpoena negligent employer’s records and compare what our own screening finds. Having these resources enables us to compare what was found to what should have been found by an employer in the hiring process. Call us today for a free no-obligation consultation if you suspect you were injured due to an employer’s negligent hiring.