Bearak Reports - Asset Search and Information Verification Services
Bearak Reports Asset Search and Information Verification Services

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Workplace Violence and Negligent Hiring

"There are issues that can arise if you hire employees with dangerous or violent propensities," notes David C. Hagaman, a partner in the Atlanta office of Ford and Harrison, a law firm specializing in management-side employment and labor law. "Obviously, the most critical thing is that if employees do have a dangerous propensity, they may be put into a situation where they could injure another person. Then the plaintiff who is the injured person (a member of the public or another employee) is going to check to see if you engaged in negligently hiring this person.

"Negligent hiring is where the company breaches its duty of care. What that means to an HR professional who is typically involved in the hiring process is that you will be questioned as to whether you took all reasonable steps that you should have or could have to identify whether the applicant had any past problems with misconduct or unfit behavior.

Background checking – the job determines how much

"For employers, this means checking references and/or prior employers and, for certain jobs, even doing criminal or motor vehicle departments checks," advises Hagaman. "Most people in HR know exactly how to go about doing those things. You really need to check—and you need to balance that against the job. If you are hiring someone to work on an assembly line making widgets, you may not want to do a full background check as you would if you were hiring a customer service representative who is going into customers’ homes."

Hagaman suggests employers have a reference checklist. "Believe it or not, as simple as that sounds, most employers don’t do that. There ought to be a document in each person’s file that states who you contacted and what you learned when checking a prospective employee’s background and references." Hagman also notes the unfortunate truth—that many employers will not respond fully to a reference check—particularly with negative information—for fear of liability. Still, the importance of trying to get the reference cannot be overemphasized. "It’s not that you always get the information, although clearly that is desirable. But the point is that you tried to get it. If you didn’t try, you are going to be negligent."

Warning signs – look out

Hagaman also warns that employers can be held liable for employees who have exhibited signs that they may be potentially violent. "If you know or should have known that an employee had a problem, and you never did anything about it, you could be found liable for negligent retention, which can open you up to a lawsuit. There are often things that crop up regarding the individual that could have been or may have been triggers or indications that he (and I will say he, because the majority of people who commit workplace violence are white males between the ages of 25 and 45) may be violent. There is a whole list of characteristics that experts have found that indicate the possibility of workplace violence. If any of these triggers are there, you need to look into it, again making sure you don’t violate the rights of privacy of the employee. It’s a real balancing act."


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