The most results-oriented method to avoid negligent hiring is to conduct an appropriate investigation of potential employees without being discriminatory in accordance with laws and regulations. A negligent hiring claim argues that an employer should have known that one of its employees was a danger to other employees or customers. This is a type of bodily injury that assumes that an employer has a legal responsibility to hire competent employees and fully audit their employees. Drug tests and background checks can be expensive and time-consuming that you`d probably prefer not to spend. However, you must ensure that jobs that increase the potential for exposure and risk to the business have additional review steps. If you hire a telemarketer, your future misconduct may not put your business at risk further. However, if you hire a driver who transports highly flammable, explosive, and/or toxic chemicals, you can`t even risk the perception of a negligent attitude and you want to make sure that their driving history is good and that the driver is not using intoxicants and/or illegal drugs that could affect their driving skills. You should also make sure that there is nothing in the driver`s background that suggests that he or she has used violence as a form of revenge in the past. If this is the case, the driver`s access to hazardous chemicals puts your business at risk again. Below are examples of the types of negligent hiring claims against an employer Negligent hiring cases often focus on background checks as well as qualifications for the position for which the person was hired. Qualifications may include the driving skills and records of a person hired as a driver. A surgeon hired or hired by a hospital is expected to have certain qualifications and experience before operating on patients. The courts also consider the element of predictability and determine whether an employee`s actions should have been anticipated based on what was known at the time of hiring.
Employees can reduce the risk of careless hiring mistakes by taking simple precautions. For example, conducting background checks and drug tests on employees. It is important to note that there are different levels of background checks and that an employee with exceptional access to assets or individuals would need a stricter check than an employee in a low-risk position. Although the aforementioned equal opportunity laws and limitations of employer liability are intended to mitigate employer liability, these concepts are neither widespread nor standardized enough to provide sufficient protection against negligent hiring claims against employers. In the absence of a consistent national standard, it may be more effective and sustainable to adopt best practices in due diligence when hiring individuals with criminal records. Civil liability is not the only thing that can lead to a lawsuit. Negligent attitude and negligent oversight are common sources of corporate responsibility. Negligence hiring offences occur when an organization hires an employee who is not qualified or suitable for a position.
Imagine a daycare hiring an employee without a background check. An employee abuses a child, and it is later discovered that the employee was a registered sex offender with a history of child sexual abuse. The courts would conclude that a routine background check would have revealed this fact, that the employee would not have been hired, and that the child would not have been harmed. As noted earlier, the doctrine of negligent hiring focuses on employers who are diligent when hiring employees.9 Employers can take steps to avoid these claims by conducting background checks before hiring an individual. It is important to note that employers who contract with consumer helplines are subject to the requirements set out in the FCRA.10 Under the FCRA, a credit rating agency cannot report records of arrests that did not result in a conviction if the arrests were made more than seven years ago.11 However, you can declare convictions indefinitely.12 Q: What should employers do to avoid negligent hiring claims? For example, if an employee is attacked by a co-worker, they may have the negligent right to hire if it is proven that the co-worker has crimes on their file that would have been discovered with a criminal background check. If an employee rapes a customer or other employee and it turns out that they have already been convicted and jailed for sexual assault, the company could be held liable because it should have disclosed this information before hiring. Once the pool of candidates has been narrowed down to an end candidate, it`s time to do another screening via a drug test and background check. You will recall that substance abuse is one of the warning signs that an employee has problems that at least lead to problems with reliability and job performance and, in the worst case, can escalate into disruptive and even violent behaviour.
If one of your facilities is located in an area where recreational marijuana has been decriminalized, your organization must legally establish and document how recreational use affects your hiring standards. For example, if you are hiring for a position that is used as hazardous machinery, any indication of impairment or dependence on a substance may pose too great a risk to the job. A negligent hiring case can be very costly, both in terms of money, such as legal fees and punitive damages, and directly on the company`s public image, resulting in the loss of customers. Going back to the child care example, do you want your kids to be there after they learn that the background check has not been done? Most organizations do a very good job of identifying and documenting the requirements and qualities they look for in candidates for their various jobs. However, some companies don`t do a good job of identifying and documenting behavior and reasons that would disqualify a candidate for a job, even if the candidate meets the preferred education and previous experience requirements. The first step in weeding out unwanted candidates is to include in job descriptions or job postings what previous behavior disqualifies a candidate from employment. Many organizations are reluctant to do this because it can be a tedious process and requires legal reviews by your employment lawyers, whether internal or external contractors.