Negligent Hiring

Should I be concerned about negligent hiring?

The answer is absolutely yes!  Negligent hiring is a cause of action in tort law that arises where one party is held liable for negligence because they placed another party in a position of authority or responsibility, and an injury resulted because of this placement.  Simply put, if you hire an employee that is convicted of a crime that may put your clients at risk, or hire an employee that injures someone while under your employment, and it is found that no background was done, you could be liable for Negligent Hiring.

Negligent Hiring lawsuits can cost your company anywhere from several thousand to several million dollars.   Courts may award actual and in some cases, punitive damages based upon the seriousness of an incident - including bodily injury or death.

Employers who fail to take action to control abusive, belligerent, or combative employees often find themselves embroiled in litigation.  For example, some injured employees have sued their employer for the negligent hiring or the negligent retention of the alleged employee who caused their injuries.   Typically, these suits have alleged that the employer failed to accurately check references, criminal records, or general background information that could have shown the employee's likelihood for criminal or tortuous behavior.

Not Necessarily!  For example, if a proper criminal background check shows that an employee has never been convicted of an act of violence, then it is not "foreseeable" that he would commit violence at work.  If, however, the employee has been convicted of a violent act or even bad traffic record, and commits a violent act or has an accident resulting in injury at work, the employer may be liable for the "foreseeable" act of his employee.

Employers have a duty to prevent crime and protect the public from the "foreseeable" acts of an employee and may be liable for facts that "should have been known" about an employee's character or job-related experience.  The negligent hiring and negligent retention theories of liability have been recognized in a number of states, and in an example of a decision by the Maryland Court of Appeals, the court was faced with a negligent hiring claim when a woman sued her landlord, the Housing Opportunity Commission, after she was raped by an inspector who was an employee of the Commission.  Another case facing the courts in Colorado was a delivery driver involved in a traffic accident where he was at fault.  It was determined that the driver had several violations on his past driving history including prior DUI's, and due to no background check being conducted, the courts awarded the spouse of the victim $780,000 dollars.

Employers should verify any information solicited on a job application to determine an applicant's suitability for employment.  In other words, if a company inquires about previous criminal convictions, educational achievement or a specific type of job-related experience, the company has an obligation to verify that the information provided by the applicant is true.  Davis & Associates specializes in integrity background interviewing that is the precursor to the background check.   This information, combined with a credible background investigation, will assure you that you have made the best effort possible to reduce your negligent hiring liability.