A recently hired sales representative is charged with sexual assault against a fellow sales rep.
The ensuing investigation reveals that the new employee had a prior rape conviction, but because the company failed to conduct a criminal background check, the hiring manager did not know this before making the job offer.
The injured employee sues the company for negligent hiring.
Your employees and customers have a right to a reasonable expectation that they will not be harmed while doing business with you. If an employee harms a co-worker, customer or other individual who comes into contact with the employee during the course of his or her duties, you could be liable for negligent hiring or retention.
And the consequences to your business could be devastating. Employers lose up to 75% of negligent hiring cases and the average settlement is $1 million. Add to that the fact that 85% of employers catch candidates lying on job applications, and the case for due diligence before hiring couldn’t be clearer.
What Is Negligent Hiring?
Negligent hiring and the similar issue of negligent retention are based on the concept that the employer may be held liable for harm resulting from an employee’s misconduct.
To win the case, the plaintiff must prove the following:
- The accused employee was guilty of causing harm to the plaintiff
- The employer knew or should have known about the propensity of the employee to commit the alleged wrongdoing
- The employer failed to exercise due diligence, such as conducting background checks, during the hiring process, or disciplining or dismissing the employee upon learning of the prior misconduct
Negligent hiring cases may involve physical harm to another individual, vandalism, theft or embezzlement. Although it could happen to any business, the employer’s risk of liability is particularly high in the following scenarios:
- Personal selling, professional services and other jobs involving extensive one-on-one contact between employees and clients.
- Child care centers, health care organizations, nursing or convalescent facilities and other industries that provide service to vulnerable populations such as children, the elderly or individuals with disabilities.
- Positions that require the use of a motor vehicle, which may include driving a truck, operating a company vehicle or traveling in one’s personal vehicle on company business.
- Real estate agents, rental property employees and others with access to keys or lock combinations for entering another person’s property.
- Any employees with access to passwords, account numbers, Social Security numbers or sensitive personal information.
- Employees whose work involves confidential financial information and those responsible for handling money.
What Type of Background Screening Do You Need?
A 2018 survey by the National Association of Background Screeners revealed that 95% of employers conduct some type of background check, and that 60% conduct them during the hiring process only. The number one motivation is safety, such as protection against sexual assault or harassment, negligent company drivers, theft or financial losses.
Background checks are also useful for reducing the risk of negligent hiring or retention liability. There are different types of background checks that may be selected based upon the specific nature of the job in question.
- Criminal history: This may include prior convictions and sex offender status. Some states mandate criminal background checks for industries such as child care and health care.
- Credit reports and other financial records: A candidate’s financial status may be relevant for jobs involving handling money or access to financial records.
- Motor vehicles records: If driving is part of the job description, verify that the candidate has a valid driver’s license, and check for DUI convictions, suspended or revoked driving privileges and other red flags.
- Employment and education history: A surprisingly large number of candidates have been found to claim degrees they never earned and even schools they never actually attended.
Does your organization need assistance with employment background checks? Are you not sure what information to collect?
Robert Cirtin Investigations, LLC performs thorough and comprehensive background checks that are unique to every situation. Investigations can include many facets including criminal records, civil and federal court records, driving history, asset and license searches and more.
Contact us today to schedule a consultation.