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. Talk to a work injury lawyer if you feel like you were injured due to an employer putting an incompetent or irresponsible employee on the job.
What Are Some Examples of Negligent Hiring?
A worker playing on his cell phone while working in a roadway.
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, harm is foreseeable. Moreover, you can and should use readily available resources 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 does 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 required level of diligence has been ascertained, an employer must decide how to meet it. Obviously, if an industry-specific standard exists, the employer should follow it. For example, the Federal Department of Transportation Regulations for Commercial Motor Vehicle Drivers. If no such requirements exist, she must look to other resources. Industry standards and guidelines published by authoritative organizations, journals, and treatises can be a strong 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?
Today, numerous resources are readily available to help an employer conduct due diligence. An employer should educate himself and use 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 media checks
- Sex offender registry checks
The above tools are just some of the ways an employer can review 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 to use them. Many of these checks can be conducted online for nominal fees or even free. Numerous employment screening companies can not only screen for employers but also educate them on legal requirements and industry standards. Thus, employers have no excuse for failing to use these 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 shows the employee has a propensity to abuse the authority granted by the position. It is essentially the same as negligent hiring, except the employee is already hired and in the position when 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 found no past problems does not mean it is safe to assume 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 regular checks, not just a one-time screening. A responsible employer must determine how often it is reasonable to rely on 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 Vehicles licensing checks, hospital lien checks, property tax record checks, and other screening checks on defendants. Our negligent hiring lawyers also have private investigators available for more detailed history and record checks when needed. We can, and often do, subpoena negligent employers’ records and compare them with what our own screening finds. These resources let us compare what was found with what an employer should have found during 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. Call (713) 932-0777 for your free consultation today.
