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Negligent Hiring: An Employer’s Duty to Protect Everyone
An
employer has a duty to protect its employees, customers, clients, and
visitors from injury caused by their employees who the employer knows,
or should know, pose a risk of harm to others. When an employer violates
that duty, it may be liable for damages under the tort of negligent
hiring, negligent retention, or negligent supervision. Balanced against
the state and federal provisions protecting employee privacy are the
increasing demands upon employers to be responsible for the actions of
their employees. Current case law establishes that an employer has a
duty to exercise reasonable care in hiring persons who, because of the
nature of the employment, could present a threat of injury to members of
the public.
In a recent case, a nursing home named Manor Park hired a janitor who,
as it turns out, was using a different name and a fictitious date of
birth and Social Security number. Consequently, Manor Park discovered
that the person it hired had five prior felonies on his record only
after he had raped an 84-year-old nursing home resident suffering from
Alzheimer’s. The victim’s family sued, contending Manor Park was
negligent in its hiring practices, starting with its failure to detect
that the janitor applied for a job under a false identity. A jury agreed
and awarded $1.1 million in damages.
According to the attorney who represented the rape victim’s family,
Manor Park’s human resources department ran a criminal background
check on the janitor, but because he was using a false Social Security
number, his criminal record didn’t turn up. The attorney argued that
Manor Park’s HR department overlooked many critical prehire steps and
red flags that should have triggered closer scrutiny of the applicant.
1. Carefully check a picture ID and complete INS forms. Manor
Park didn’t obtain all of the documentation required for the INS I-9
form. Each time company officials asked the janitor for a driver’s
license or other picture ID, he said he would bring it later, but he
never did.
2. Verify the accuracy of Social Security numbers. The Social
Security Administration operates a free verification service that
employers can use to confirm a prospective employee’s Social Security
number. You can check up to five numbers at once by calling (800)
772-6270 (make sure you have the employee’s date of birth, as well as
your Employer ID Number when you make the call).
3. Ask about every gap in employment history. Breaks in the
janitor’s employment history should have raised questions that could
have led the nursing home to discover he had served several prison
terms.
4. Carefully check references. The HR staff didn’t talk to any
of the janitor’s work references or check his personal references.
5. Question educational records. Had Manor Park checked, it would
have found that the college the janitor claimed to have attended had no
record of him under his assumed name. Although he was applying for a
janitorial job, he claimed to be a college graduate, which should have
led to inquiries about his educational background.
CONCLUSION: When employers feel the pressure to hire any
candidate that appears qualified right when they walk through the door
they incur substantial risks. However, this case illustrates the
importance of taking the time to check every aspect of an applicant’s
background. Even if you hire a vendor to perform these critical steps,
you must verify that they are taking all the steps necessary for a
proper background check.
This article is a general overview of the subject
matter and is not meant to provide professional opinions regarding any
specific case, matter, or set of facts, or to substitute for
professional advice. Please
contact Susan S. Waag, Esq. or an employment lawyer for additional
information.
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