It Could Happen to Your Company
Let’s say Norm, your new employee, is doing a super job for you. He’s energetic, enthusiastic and gets his work done on time and without error. He’s everything you thought he’d be from interviewing him and looking at his job application.
The same evening, you get a call you can’t believe. Your secretary has been assaulted. She’s in the hospital. The incident happened at work. Norm has been arrested and the police tell you there is no doubt he is the guilty party.Late one afternoon, as you depart for the day, only Gladys (your secretary) and Norm are still in the office working. You bid them farewell, tell them not to work too late, and say you’ll see them tomorrow morning.
How could this happen, you ask yourself. From all indications, Norm was a great guy. There was nothing on his job application to indicate trouble like this….Or was there?
A few months later, you’re asking yourself the same questions again, but for a much different reason. Your secretary, who resigned shortly after the incident, not only filed charges against Norm, but is suing you, too, claiming you were negligent in hiring Norm in the first place.
Sometimes the job application can be a tip-off to future trouble, not only by what it says, but by what it doesn’t say. In Norm’s case, he provided a work history going back 15 years. He didn’t mention he was in jail,16 years ago, for a sex crime. Sound far-fetched? It isn’t.
In Texas, a police dispatcher was raped by an officer who was subsequently convicted and sentenced to prison. The dispatcher sued the mayor and the city council, claiming they were negligent for hiring the officer in the first place. The officer had been on the job for three years. Prior to this, he had been employed by another Texas police department for about 20 years. In doing a background check, the city had checked the man’s references and talked with people he had worked with at the other police department.
What they didn’t check was his employment record far enough back. The officer had been arrested for indecent exposure while he was a police officer in California. The dispatcher claimed, had the city done a thorough check, the assault would have been avoided because the officer never would have been hired.
Her lawsuit represents a dilemma for you and other employers — a legal minefield called “negligent hiring.” The most vulnerable companies are service and maintenance firms because of the direct contact with customers. But inner office contact, as in the Texas police station, can also be a problem.
The dispatcher lost her lawsuit when the court ruled the city had performed an extensive background check which conformed with its guidelines for doing so. Some employers have not been so fortunate.
An employee of AstroWorld, the Houston amusement park, sued her employer after she was raped by a coworker. A jury awarded her $175,000, agreeing the employer failed to protect her by not checking the man’s criminal record — and he had one.
New employees represent a potential threat to you and your employees — and to your wallet — unless certain precautions are taken. Here’s what you can do to avoid negligent hiring:
- Do background checks which are suitable in relation to the amount of contact the new employee has with the public — and the type of contact. Will the employee be using a vehicle? Will the employee be entering people’s homes? Will the employee be entrusted with large sums of money?
- Check more than references on a job application. All applicants list the names and phone numbers of people they want you to call. Are there other calls you should make? Who are the applicant’s previous supervisors?
- Don’t hesitate to check criminal records. In many cases involving negligent hiring, the missing ingredient in the hiring process was the criminal record check.
- Look for gaps in a job prospect’s employment history and ask about them.
- Verify education and training listed on an application, particularly when the education and training are critical for the position you are trying to fill. A job application is a form of communication. But it is the employer’s duty to verify the information it communicates. If the information isn’t checked, the application is worse than worthless. It can be extremely costly.
- Develop a checklist and paper-clip it to each new job applicant’s file. This will serve as a “things to do” reminder before a job is offered. The list could include calls to at least two former employers, verification of degrees and training diplomas, check of criminal and driving record, and notation of any gaps.
What Courts Look For
Courts ask you to take “due care” when hiring employees. Due care is the care ordinarily careful persons exercise under similar circumstances. Should you be hauled into court on negligent hiring charges, the court will closely examine your hiring practices. The court wants to know your hiring practices are in line with standard hiring practices of the business community.
Courts ask these 3 questions:
- Did you have reason to know of the applicant’s particular unfitness or dangerous characteristics?
- Could you have reasonably foreseen the applicant’s unfitness created a risk of harm to others?
- Did the applicant’s unfitness cause the injury?
Because the background check is increasingly common in the business world, it is likely to be a major “due care” standard against which courts measure your hiring practices. Courts will want to know whether you investigated an applicant’s background with the same thoroughness common throughout the business community.
Courts ask if you checked out suspicious factors like short residency periods, employment gaps or the applicant’s admission of prior criminal convictions.
Carefully check all job applications. If applicants leave questions unanswered, press them for responses. Confirm the accuracy of all of the answers of the person you intend to hire. Do a thorough background and credentials check on all persons you intend to hire.