Your employees are living, breathing representations of your company, and they are a direct extension of your own presence as a business owner. As such, you are responsible for their behavior, and you are expected to be reasonably knowledgeable about their past behavior at the moment of hiring. Negligent hiring lawsuits stem from this expectation.
The employer must determine if “placement of the individual in the position would create an unreasonable risk to other employees or the public.”
Negligent hiring stems from an employee with a history of aggressive or negligent behavior, who then injures a coworker or customer through a similar incident. For example, a driver for your company causes an accident that injures another driver. Lawyers for the injured person discover that your driver had a history of unsafe driving prior to his employment with your company. (Read about a similar negligent hiring case from 2011.)
And there’s your negligent hiring lawsuit.
As a business owner, you may be found liable for hiring this person, assuming a certain amount of risk due to past behavior, then causing injury. In short, you should know who you’re hiring.
So what can you do?
To mitigate the risk of a negligent hiring lawsuit, you should be thorough when researching the history of a prospective employee. In a previous post, we discussed how to perform background checks in accordance with EEOC standards. Background checks are so standard these days that there’s a whole industry of certified professionals who perform background checks thoroughly and legally. Take advantage of them.
In addition to background checks, there are also supplemental steps you can take to cover all your bases. Chief among these is checking references. While you can have a contractor perform a rigorous background check, reference interviews are an opportunity for you or a trusted associated within your HR department or PEO to speak directly to people who have worked with your candidate in the past. (Remember, you must first get permission from the candidate to speak to their references.) Not only does this conversation allow you to check claims made by the candidate with regard to skill sets and other hard facts the candidate has reported in their application; you can also ask about more nuanced issues like behavior and gauge the responses not just by their content, but by the tone and attitude of the person being interviewed.
Take your time with reference interviews just as you would with a candidate’s job interview. Research the person beforehand and be prepared to have a real conversation, rather than a perfunctory question-and-answer session.
While negligent hiring lawsuits are a legitimate concern, employers should also be cognizant of potential discriminatory practices during the hiring process. When considering a candidate with a criminal record, the EEOC recommends that the employer take into account the nature and severity of the offense and how much time has passed since the conviction, as well as the circumstances surrounding the offense and the nature of the position sought.