What is Negligent Hiring?
Hiring managers generally fill positions according to which applicant is best for the job. They consider aspects of an applicant’s education, past work history, experience, etc. But, rarely, do hiring managers consider what can often be the most important aspect of what an employee brings to the workplace – criminal history.
Negligent hiring occurs when an employer fails to properly screen prospective employees, leading to the hiring of someone who has a criminal history that may have otherwise made the hiring of that individual undesirable primarily because doing so would have exposed other employees to unsafe working conditions.
For instance, if an employer hired someone who had been convicted previously convicted of rape to supervise an offsite group of female employees, that employer could be held legally liable should something occur on, or off, the job site. One the job site, the employer would be obviously liable. Off the job site, the waters become murky, but the case of a BP oil spill cleanup supervisor who offered a female coworker a ride home, then allegedly raped the woman, shows that employers may be liable for what happens outside the workplace if that employer’s actions, or lack thereof, could be viewed as the reason someone becomes the victim of a crime perpetrated by a coworker.
What all this means is that employers have to make sure that the people they hire don’t have a criminal background. An employer who becomes liable because an employee has become the victim of a criminal act perpetrated by a coworker, may be in that position because the law assumes that the employer should have known, had they performed a background check, that the employee they hired may have been a danger to those around him/her (or even to a client/customer of the organization).
The law requires employers to exercise what is called due diligence. Due diligence is the responsibility of vetting prospective employees for not only basic job skills and previous work history, but for personal factors that may be an issue within the workplace as well. Existing employees and customers have a right to expect a safe workplace. And, although there are certainly many things that can change after hiring, an employer’s failure to properly screen employees may leave them vulnerable to lawsuits and even criminal negligence.
The only way for employers to protect themselves against a negligent hiring lawsuit is to ensure that they have a sound and comprehensive pre-employment screening policy in place. A good pre-employment screening policy should not only include a check of educational information, prior employment history, and other “usual” employment-related requirements, but it should also require that anyone offered employment be subject to a thorough criminal background check.
All employees hired by an organization should be required to submit to such a screening. It is no longer good enough for employers to screen only those employees who may be in a position to directly damage the company’s bottom line – such as executive-level employees, those with access to company funds, etc. – but all employees. The people an organization hires are now, in many ways, considered the responsibility of that organization, both on, and in some instances, off the job. Employers have to protect themselves and their employees.