Preventing Negligent Hiring Claims

The main reason to investigate an applicant's background is to make sure the person will do a good job for you and fit in with other employees on the staff. But sometimes there's an additional, equally powerful reason to make a thorough investigation. When you hire someone for a position that may expose customers or others to danger, you must use special care in checking references and making other background checks.

Legally, you have a duty to protect your customers, clients, visitors and members of the general public from injury caused by employees you know or should know pose a risk of harm to others. In some states, you may also have a duty to protect other employees from an employee whom you know or should know is dangerous. If someone gets hurt or has property stolen or damaged by an employee whose background you didn't check carefully, you can be sued for negligent hiring.

Be especially vigilant when hiring maintenance workers and delivery drivers, whose jobs would give them easy access to homes and apartments.

Example: The Village Green, a 200-unit apartment complex, hires Elton as a maintenance worker and gives him a master key. Elton enters an apartment and sexually molests a four-year-old girl while the child?s parents are running an errand. Had the company checked before hiring Elton, it would have discovered that Elton had just completed a prison term for a sexual offense. The child?s parents sue The Village Green for negligent hiring.

Doing a background check can be a delicate matter, since laws also require you to respect the applicant's privacy. If you hire people for sensitive jobs, you must investigate their backgrounds as thoroughly as possible without stepping over the line and violating their privacy rights. You can be faulted for not looking into an applicant's criminal convictions but not for failing to learn about prior arrests that didn't result in convictions, since such arrest records are generally protected by privacy laws.

In doing background checks on applicants for sensitive jobs, check for felony convictions and also be diligent in contacting all previous employers. Keep a written record of your investigation efforts. Insist that the applicant explain any gaps in employment history. Consider turning over the pre-hire investigation to professionals who do this for a living. If you choose to follow this route and can afford it - it can go a long way toward refuting later claims that you failed to use reasonable efforts to learn about the employee's history.

To learn more about negligent hiring cases, see Employer's Guide to Workplace Torts, by Ronald M. Green and Richard J. Reibstein (Bureau of National Affairs). It costs $45 and can be ordered by calling 800-372-1033

Excerpted from the "Legal Guide for Starting and Running a Small Business" by Fred S. Steingold

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