Negligent hiring happens when you hire an employee with a dubious record who carries on to injure or harm another employee or client in the organization. Negligence in hiring can result in legal issues, lawsuits, fines, and penalties for an employer. This happens when you, as an employer are found negligent in providing an employee with the capacity to commit a wrongful act against an employee or client.
Negligence on the part of the employer occurs in 5 key areas, hiring, onboarding, training, management, and retention. Hiring an applicant negligently can apply to offenders or those with a record of causing workplace conflicts. In the case of a serial offender, an employer, might have reasonably avoided the situation by taking due care and diligence in your decision to hire by performing adequate non-discriminatory background checks.
For instance, an incident of theft in the workplace may have a cause of action for negligent hiring on your employer if employee can show that you, as an employer, you were aware of the employee having a previous record of theft. Organization has a primary responsibility to provide a safe and productive working environment for all its employees.
The most result oriented method to avoid negligent hiring is to conduct a proper investigation on potential employees without being discriminatory in compliance with laws and regulations.
The steps that need to be taken include:
- Conduct indepth interviews.
- Check professional and personal references.
- Verify educational history.
- Verify employment history and check with former managers.
- Validate university degrees and certificates.
- Perform drug screening.
- Conduct practical’s in selective jobs.
- Carry out credit checks for positions involving handling of money.
- Verify driving records and history in selective cases.
- Study biodata in detail and verify, investigate all claims and details such as employment record.
It is always advisable to conduct a fair and non-discriminatory background check on all potential employees and if a problematic evaluation is found, to refuse employment to such an applicant. Employer should diligently take needed steps to avoid hiring negligence, but this could vary based on circumstances.
For protecting yourself against lawsuits arising out of negligent hiring, an employer should perform checks. However, additional investigation can involve a criminal records search. You may also verify personal educational and professional references and check all degrees and certificates given by the potential employee. Avoiding negligent hiring needs a wise plan of action and diligence but need not be of extreme nature. Employer should primarily safeguard their interests and those of your employees.
Instances in which an employer can be potentially liable
Below are few instances where employer could face a lawsuit from the injured employee
- The employee injuring or harming another person must be current employee on the payroll and not an ex-employee.
- The employee was found guilty of causing injury to fellow employee.
- The employer was aware of or should have known the previous history of the employee’s tendency to inflict harm.
- The employer did not perform needed checks to verify employee history that would have disclosed such acts.
As with all negligence claims, the employee must prove four elements:
- That the defendant (in this case, the employer) owed them a duty of care;
- That this duty was breached;
- That the employee was injured as a result of the breach;
- The injury to the employee was a reasonably foreseeable consequence of the breach.
In order for such a duty to exist, the injury to the claimant must be “reasonably foreseeable”, meaning, for example, that the type of employment must be one in which an unfit employee could cause harm of the type which occurred, and the claimant is the type of person to whom such harm would be a “reasonably foreseeable consequence”.
Below are examples of the types of negligent hiring claims against an employer
- An employee sexually harasses a coworker, on investigation, it is found that the employee is a convicted sex offender. The employer was liable because this detail could have been verified with effective background checking.
- An employee who is guilty of theft by stealing fellow employee’s resources or data, when he was investigated was found to have a dubious record of theft with former companies.
- An employee injures a coworker by driving under the influence of alcohol with a previous records of doing driving violations with former employers.
- An employee physically assaults a fellow employee, resulting in injuries to him/her. After investigation, the employee is found to have criminal records of violence in previous organizations and employer did not verify employment references.
During hiring, every employer should be aware of basic risks and perform due diligence to avoid lawsuits. Negligent hiring tends to be linked with candidates with criminal records, but the link between the two is in some cases misconstrued. Fear of lawsuits due to negligent hiring shouldn’t discourage employers from giving applicants with criminal backgrounds another opportunity. Study shows that these candidates are no more probable to engage in worksite offenses than others.