Two years ago, an employee of a Cape Cod, Mass., trash-hauling firm was charged with murder in the 2002 stabbing death of a fashion writer. Although the employee has a lengthy criminal history in Florida, no background check had been performed for that jurisdiction. Had the public records been checked, it is possible that the employee would not have been hired and thereby not put in a position where the murder could be committed. In addition, the employer would not have been exposed to a claim of negligent hiring and the damages that resulted.
While this case, and cases like it, might seem to be the exception, it illustrates the serious consequences of a weak pre-employment background screening process, and shows why diligent screening makes good business sense. It can save a company money arising from third party claims, which helps eliminate potential embarrassment and protect the value of a public company's stock. Increasingly, management, including supervisors, are being held liable for the acts of their employees, and multimillion-dollar jury verdicts are attracting the attention of employers. These negligent hiring/retention cases are on the rise and can be more costly than discrimination and other types of employee-related litigation.
Negligent Hiring The typical negligent hiring case involves an intentional tort - a deliberate inflicting of harm - committed by an employee. Some intentional torts are fraud, assault, battery and interference with contractual relations. Generally, in cases won by the plantiff, the employer is found to have improperly checked the qualifications of an applicant prior to hiring.
The question presented to the jury is: Did the employer know or should the employer have known that the employee posed a risk to others? The duty of the employer is to exercise reasonable care to ensure that workers and customers are free from the risk of harm inflicted by unfit employees.
In the case of Burch vs. A&G Associates, a Michigan taxi driver took a passenger to the desired location and received the correct fare. However, the passenger did not tip the driver. The taxi driver then assaulted the passenger with an iron bar and stole his pants. The taxi driver was later convicted in state court of criminal assault. The customer sued the taxi driver's employer for negligent hiring. The employer's motion to dismiss was denied, and the court held that if the customer could prove that the employer failed to properly investigate the driver's fitness to see if he was dangerous before he was hired, the employer could be held civilly responsible for the assault.
Recommended Steps Based on these cases and others, employers and their managers can take steps to shield themselves from these vexing and potentially costly lawsuits: -Don't hire any applicant until all pre-employment screening has been completed. -Determine what king of background check is needed for each position. Not every slot requires a full-service background screening. -Be cautious about the kind of information you receive and use. Arrest records should not generally be used in making decisions. Convictions can be used.
For more information on this topic, or to speak with a representative from Concorde regarding background screening, call us at 215-587-6268 or visit our website at
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