Pre-Employment Background Checks: What You Need to Know to Protect Yourself from Negligent Hiring Claims
Posted by Ryan Howard on Fri, Jun 01, 2018
When an employer hires someone to work for them, they are asking that person to be a representative of the company. The best outcome is to have hired an employee who is respectful, productive and trustworthy. The worst would be for the employer to face negligent hiring claims in court against a customer or another employee who was hurt in some way by the employee. Negligent hiring claims could be costly, not only in dollars, but to the company's brand and reputation.
Is your business running pre-employment background checks to protect against negligent hiring claims?
How to Avoid Negligent Hiring Claims:
Representing Your Business
According to the history of pre-employment background screening, negligent hiring claims were first considered in the early 1900's. An employer witnessed reckless behavior that caused the death of an employee but kept the wrongdoer employed after the fact. The law was then expanded to include other harmful acts that caused damage outside of the company's physical work space and violence against customers. From this point, employers recognized that anyone who worked for their business also represented their business and therefore should be screened accordingly.
Negligent Hiring Claims
A negligent hiring claim is a law suit brought against an employer who fails to act in preventing damage by an employee. Some examples of negligent hiring claims include:
- A school janitor accused of rape who had a prior conviction
- An employee killing another, on the job, after being hired despite a history of pulling a gun on workers in prior jobs
- Manager of assisted living facility, who had a history of bankruptcy and small claims, charged with stealing over $200K from a dementia client
In each of these cases, the employer could have been protected with further due diligence before hiring the offending employees. An employer who performs pre-employment background checks would have uncovered these crimes and prevented the employees from being hired negligently.
Preventing Bad Hires
Employers may feel they're in a pinch when it comes to preventing bad hires. For one, background checks may slow down the hiring process or be too costly. The good news is that a slow hiring process can be prevented with a closer look at the actual cause and suggestions on making hiring and screening more efficient. Also, background checks don't have to cost a fortune - especially if they're saving you one. Consider the amount of punitive damages you could be paying if your employee commits a crime like those mentioned above.
Cities and states across the nation are pushing ban the box or fair chance laws to help felons obtain employment. As an employer, you may have concerns about how to hire fairly but still avoid negligent hiring claims. The first step is creating a fair hiring process that includes removing the criminal history box on the application and then screening employees after a job offer has been extended. If a criminal conviction appears on the candidate's criminal background check, the EEOC recommends assessing the criminal record to determine:
- The nature and gravity of the crime
- The time since the crime or completion of a sentence
- If the crime affects the employee's ability to do the job safely and without potential cause for harm
After assessing the criminal record, you may find the candidate isn't a good fit or you'll find the criminal history had nothing to do with their ability to perform their job responsibilities.
Screening Regularly & Stay Compliant
Another consideration for employers to avoid negligent hiring claims is to screen existing employees on a regular basis. At the time of hire, the employee may have had a clean or acceptable background check. With time, however, the employee's life may have changed causing other potential harmful traits that would not be acceptable. Include information about regular background checks in your hiring documents. Obtain consent and authorization always before screening any applicants and employees.
Employers will have likely complied with several state and federal hiring laws and potentially avoided negligent hiring claims by:
- Banning the criminal history box from the application
- Obtaining consent before screening
- Performing a pre-employment background check
- Assessing the criminal record before making a hiring decision
- Following adverse action procedures if the candidate failed their background check
- Screening employees regularly or when they're being promoted to other jobs
Negligent hiring claims can be costly to a business, in reputation and in dollars. Protect your business and hire the right company representatives by running pre-employment background checks.
Topics: Employment Background Screening