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Negligent Hiring and Negligent Retention
 More than ever, employers are being held accountable for the actions of their employees--IF they do not enter into what is called "due diligence" during the hiring process.
Due diligence means that the employer does that which is reasonably available to him or her in order to verify their applicants' true identity and history.
This has been ruled, by the courts, as a necessity for the protection of the public and other employees.
Due diligence translates into:
- Background/Preemployment Checks
- Verification of References, Work History and Degrees
- Periodic Criminal History Re-checks
- Drug Testing (in many positions)
- Adequate Employee Training, Observation and Management
(which includes resolving complaints against personnel
in a timely and reasonable manner)
According to Black's Law Dictionary, NEGLIGENCE is "[t]he omission to do something which a reasonable man guided by those ordinary considerations which ordinarily govern human affairs would do, or the doing of something which a reasonable and prudent man would not do" (6th edition, 1990, at 1032).
Many claims that are brought against employers for inadequate or inappropriate screening are brought on the basis of negligence theory. NEGLIGENT HIRING THEORY is based on an employer's negligence in placing a person who has past knowable propensities--or propensities that could have, and should have, been discovered by a reasonable investigation--into a position where his/her actions
could pose a threat to the well-being of others, or a threat of injury to others (Ponticas v. KMS Investments, 331 N.W. 2d at 911).
Under the theory of NEGLIGENT HIRING, an employer can be held responsible for an employee's intentional tort when the employer knew, or should have known, that the employee was violent or aggressive and could possibly behave violently or engage in harm toward others (DiCosala v. Kay, 450 A.2d 508 (1982) New Jersey).
Who can be negligent?
-- Corporations
-- Individuals
-- Non-profits
-- Small business owners
While injuries occur every day, the large majority, thankfully, do not result in lawsuits (although statistics reveal an increase in recent years).
Besides, merely being injured on someone else's property or while attending an organization-sponsored event is no guarantee that the injured party has the right to sue. Many states have instigated laws concerning this--check your state for details.
In a standard negligence case, the plaintiff must ususally prove four basic elements. They are:
Breach - Defendant or employer didn't meet the required
standard of care
Causation - Defendant's failure to meet the required standard
of care was directly, or causally, related to plaintiff's personal
injury or property loss
Damage - Plaintiff's loss or injury was caused by defendant's
negligence or breach of duty
Duty - The defendant or employee had a duty or obligation
toward the plaintiff to act in accordance with existing laws or
within reasonable measures of conduct for the prevention of
foreseeable harm
It is obvious that "reasonableness" is a huge part of these elements. Reasonableness is a term defined by perception, however. Inaction that is universally accepted as reasonable regarding the safety of an adult, may be entirely unreasonable, and even criminal, in regards to the well-being of a child or an adolescent.
The concept of reasonableness changes with public opinion, however, as well as with geographic area, environment where the injury occured, and the identity of the employer and employee.
More importantly, the perception of reasonableness can change dramatically as available technology and safeguards for the prevention of violence and harm become available to the public. With these safeguards readily available, but not in place, an employer can be held liable for injury, harm or loss to employees and/or customers.
Not only does negligence theory apply in the case of violence or loss committed AGAINST employees and the public (even accidents), but is also applies to violence committed BY employees.
Many safeguards are available to protect against the violent employee. One of these is a thorough pre-employment investigation-- which includes a criminal history check, verification of references, diplomas, etc.--another is hidden camera evidence so there will be no need for "he said/she said" arguments--a third is drug testing--and a fourth is periodic, random re-checking, along with attention to, and resolution of, employee and customer complaints. While other measures can certainly be added, these are the Basic Four.
 Basically--and legally--the
measure of your liability will be decided according to the availability, in the marketplace, of screening tools and management safeguards, weighed against the "reasonable" need for their use, AND your actual implementation of them for the protection of employees and customers.
For example, if your employee (delivery person, nanny, housekeeper, technician, secretary, salesperson etc.) is doing an errand or is on
a mission for you or your business, and is involved in an accident, it won't matter who is at fault if the investigation discovers that this employee's driver's license has been suspended for the charge of wreckless driving or some other charge.
The legal system will want to know why you had an employee driving on your behalf with a suspended license when this could have been discovered by a periodic Motor Vehicle Records Check. They will ask whether your company took reasonable steps to protect the general public from such an employee. Should serious injuries result, your liability can multiply.
Should you have known? The question asked will be: Could you have known?
Yet--There is Good News!
The need to prove anything in court
can often be simplified or even eliminated entirely with the right
security measures!
Let SaferSecurity, Inc. help you with your due diligence, as well as other security measures that can help to keep you out of court!
Montage of newspaper articles about workplace violence
For more information about the crackdown to come on negligent hiring, see this report, U.S. Set for a Crackdown on Illegal Hiring, in the New York Times by Julia Preston on August 8, 2007.
http://www.nytimes.com/2007/08/08/washington/08immig.html?_r=1&th&emc=th&oref=slogin
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You'll be amazed at the yearly losses suffered by all types of businesses. To find
out the astonishing numbers of REPORTED LOSS, see the Chart of Business Losses
by Business Type
MORE
Remember that this chart shows the tip of the iceberg. Not all losses are reported.
See Business Services for much MORE info!
See also, Background/Pre-employment Checks
MORE
See our sample background check MORE
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