Whether you are looking to start a business, hire your first worker, or simply expand the operations of your current HR department, you need to understand the concept of negligent hiring. Knowledge of the threat of negligent hiring will not only improve your entire employee screening policy, but also drive your business to directly defend against circumstances that might result in lawsuits or scandals at your company.
First of all, let’s try to understand negligent hiring by looking just at the definition itself. “Negligent hiring” is a type of legal claim that can be made by a customer or worker who is somehow hurt or “damaged” by an employee in your hire. In most cases like this, the employee in question commits some sort of crime on company time. Some examples include assaulting a customer or stealing from a co-worker.
Negligent hiring claims are made when there is some piece of history in the offending employee’s past that could have predicted the offense in question. For example, a negligent hiring claim could be made if the worker who assaulted a customer had a history of criminal violence.
The implication of a negligent hiring claim is that the employer either knew or could have known about the employee’s history but did not take proper strides to consider that history while making hiring decisions. In other words, a negligent hiring claim asserts that an employer could have predicted and prevented dangerous situations by being cognizant of a worker’s red flags but neglected to do so.
What Negligent Hiring Means for You
In most cases, negligent hiring claims emerge because of one or two oversights. Either the employer neglected to do background checks and did not know about a worker’s criminal history, or the employer did run the checks and simply failed to realize that a worker posed threats to both colleagues and customers.
By looking at negligent hiring in those terms, it’s fairly clear to see what the concept means for you and for most other employers like you. The message here is that when it comes to making hiring decisions, you need to do thorough background checks and take those background checks into account when making hiring decisions.
Determining the Necessary Background Checks
Which background checks you will run on your workers to avoid costly negligent hiring lawsuits will depend on what your company does. There are certain types of checks that should be standard for most any job (criminal history searches, sex offender registry checks, etc.), as well as other types that aren’t as widely used.
Luckily, when it comes to choosing different background checks to run on your workers, common sense will dictate which checks are most necessary. For instance, if you run a delivery or transportation company with a multitude of drivers on staff, you will want to run driving history checks to make sure you are hiring safe and responsible drivers. Similarly, if you are hiring doctors or other specialists who need specific professional licenses to work in their field, a professional license verification check is invaluable to make sure you aren’t hiring with a fraud.
Deciding Which Offenses Merit Disqualification from Employment Consideration
The hardest part of using background checks is deciding which criminal offenses will serve to disqualify applicants from employment consideration.
Remember that if you run a thorough background check on a person and it comes back clean, you have done your due diligence and can hire that person safely without worry of negligent hiring suits. If that person does commit some sort of crime or cause an incident on the job, your business is at very least covered against negligent hiring suits because you did everything in your power to learn about any red flags in their background.
The above reasoning is why many employers will try to dodge hiring people with criminal records at all. However, such practices are considered employment discrimination and are illegal. Unless you want to face a lawsuit from the Equal Employment Opportunity Commission, you need to judge each criminal record separately when trying to decide whether or not to hire an ex-offender. Use the following criteria to help you.
The time since the offense: In all cases, criminal offenses should be more strongly considered the more recent they are. Take an applicant with one 20-year-old drug charge on his or her record. That applicant has been proving for two decades that they can carry on a life in clean and honest fashion and should therefore be respected and considered for a job rather than being once again punished for a mistake from long ago. An applicant with a drug charge from a month ago, meanwhile, is a significantly less safe hire.
The severity of the offense: There are some types of offenses that your business is at liberty to take into account no matter how old they are. Serious or violent felony convictions, like murder or rape, are considered by many employers to be automatic disqualifiers for a job.
Repeat offenses: Just like more recent crimes should carry more weight when considering disqualifying an employee, repeat offenders should be considered greater threats than one-time offenders. This is because someone with numerous similar offenses is more likely to commit similar crimes in the future, a fact that could directly lead to negligent hiring claims if you aren’t careful. For example, someone with a history of assaults would be considered more likely to assault a customer than someone with a single offense.
The nature of the job at hand: Offenses should also be considered in how they relate to the job at hand. As mentioned previously, a DUI conviction would obviously disqualify an applicant from a driving job, but it should not have the same effect if the offender is applying for a desk job. Think about it this way. Could your applicant repeat the offense on his or her record while on the job, hurting customers or co-workers and bringing about a negligent hiring claim for your business? If the answer is yes, don’t hire them. If not, keep them in the applicant pool.
A single instance of negligent hiring can destroy a business. However, by keeping the above explanations and strategies in mind, you should be able to avoid negligent hiring claims while still obeying the hiring regulations laid forth by the EEOC and the FCRA (Fair Credit Reporting Act).
Michael Klazema has been developing products for pre-employment screening and improving online customer experiences in the background screening industry since 2009. He is the lead author and editor for Backgroundchecks.com. He lives in Dallas, TX with his family and enjoys the rich culinary histories of various old and new world countries.