First Published on COSE Mindspring – 2/08/08

Authored by Ted L. Moss, CPP

In nearly every U.S. state, courts have ruled that employers owe a special duty to their employees and clients to protect them from the harmful or criminal acts of other employees.  Financial awards and public fallout from instances where a company’s employee has caused harm to another employee can be excessively large and often punitive.  At the heart of many of these rulings is one overriding element of employer responsibility: responsible hiring practices. Negligent hiring litigation is a growing problem and statistics show that employers lose 79% of all negligent hiring suits.

 Responsible hiring means that an employer has made active and reasonable attempts to discover any historical indication, whether criminal,  characteristic, or propensity, that would provide ample warning in regards to the safety of his or her employment.  To establish negligent hiring, the harmed person generally must show that 1. The employer did not exercise reasonable care in hiring the person, 2. The employee had dangerous tendencies which should have been apparent if the employer had exercised reasonable care, and 3.  The employer placed the employee in a position where others could be injured.

Many companies have a legal obligation to perform background checks on employees if they will be placed in certain situations. Some of these might include:

Working in close contact with children

Supervision of children or the elderly

Access to personal residences or personal property

Responsibility of providing safety to others

Driving and transportation

Access to guns or weapons

In these cases, driving records checks, criminal and sex offender checks, and verification of identity are the norm. But even those businesses that are not legally required to perform background checks on employees can be found liable for negligent hiring, because from the perspective of the courts and the government, every single employer has a responsibility to perform due diligence to determine at least the  employee’s fitness to perform the job safely.

What level of screening is enough to mitigate risk?

Reviewing the employment application and verification of references is not always enough.  The level of screening should be proportionate to the level of inherent risk that the position entails.  Some basic factors to consider should be:

 Conduct a thorough background check for criminal records/sexual offender lists/identity verification

Review driving record history and verify educational history/degrees/employment records

Conduct an in-depth interview, with investigation into any employment lapses

Verify all references

Psychological testing

Consider a professional review of the resume for potential fraud

 Drug Testing

If this list seems excessive, consider the fact that the fee for a professional screening firm to conduct the above testing would usually not exceed the cost of two days salary for most entry level employees.  Most of the above can be conducted in-house, (click here for a listing of free public records)  if the company has access to a specially trained HR professional dedicated to administering the hiring process.  The law is very specific to what public and criminal records can be used when making the hiring decision, so make sure that your new hire administrator is well trained in the various federal, state, and local laws pertaining to hiring.  If hiring a professional pre-employment screening firm, make sure they are adequately certified and knowledgeable regarding CRA (consumer reporting agency) regulations.