Avoiding Negligent Hiring

Dagmara Rydza
York College of PA
May 14, 2003

What is negligent hiring?

Since the mid- 1980s the United States experienced an increase in civil suits against employers for negligent hiring. Approximately 30 states recognized the theory of negligent hiring. The theory refers to the hiring of the person that the employer knows, or should have known, possesses some attribute of character or prior conduct that would create an undue risk or harm to others in carrying out his/her employment responsibilities. Negligent hiring is the failure to use reasonable care in the employment selection process. Reasonable care depends on the type of position being filled and the degree of harm to others that could result from the failure to use reasonable care (Sennewald 1992).

Scope

Negligent hiring should not be confused with the "respondent superior"-let the master answer. The doctrine holds an employer liable for the employee's wrongful acts committed within the scope of employment. Under the negligent hiring doctrine, an employer is liable for an employee acting outside the scope of employment and even if not at work or after work hours (Hunter 2002).

Avoiding negligent hiring

According to Brobst (1999), in the past few years, we have seen many cases where security officers have committed various crimes against the people they were hired to protect. The law has placed a burden on security managers to make sure that the hired person is fully qualified. Security managers must make all attempts at verifying the information contained in the application and resume in order to minimize the risk of being sued for negligent hiring. There are three steps that can be taken to reduce liability and provide evidence that the employer had met the duty reasonable care in hiring, training, supervising, assigning, and retaining employees. These steps include:

• Make sure the job description is clearly and concisely written. Employers often have an idea of the position to be filled but have not specifically defined it. By drafting a job description, the employer clearly establishes the goals, objectives and responsibilities of the position to be filled. Daily responsibilities for a particular job should be detailed. The need for prior experience, as well as physical and educational requirements, must be specified.
  
• Check references. All former employers and personal references noted by the applicant should be contacted.
  
• Test applicants. The tests must be professionally prepared and consistently administered and evaluated. It should also be related to the position to be filled. For example, attitude testing would make sense for a position dealing with the public. Employers can use the techniques as a reasonable means to distinguish between qualified and unqualified individuals. However, such tests should be validated to ensure that the test does not discriminate. Certain testing is restricted. The Employee Polygraph Protection Act limits polygraph tests to specific situations, and under the American with Disabilities Act, medical exams and physical agility tests may be administered only after a conditional offer of employment. These tests must be related to the job to be performed. For certain public sector employees drug testing is permitted, although private sector employees are not similarly restricted. Counsel and human resources specialists should review testing.
  

Those three steps are very important elements every security manager should consider while hiring security officers (Brobst 1999).

In addition to these three steps, it is very important to perform background investigation before hiring an employee. The topic of background investigation is a complex one, involving various financial and legal factors that must be taken into consideration. Employers complained that background checks extensive enough to stand up in court cannot be performed routinely. To reduce problems, the selection procedures should be validated. The background investigation should include the following: education, prior employment, current address, criminal and civil court records, and driving records. Candidates applying for sensitive jobs such as positions that provide access to cash or sensitive information should be subjected to additional investigation of their credit history and financial checking. Also, employers should look beyond normal selection techniques, for example, polygraph testing. Polygraph is controversial, but it can be helpful (Sennewald, 1992).

Costs

Poor hiring practices can cost a company in lost productivity, theft, and workplace violence incidents that cost lives, damage the company's reputation, and depress future earnings. Legal expenses for negligence lawsuits can be very costly. Juries have awarded high dollar awards to plaintiffs bringing these cases. For example, in the case Read v. The Scott Fetzer Company (1988), the Supreme Court of Texas awarded the plaintiff $160,000 in damages after she was raped by a door-to-door salesman. If the company had performed a background check on the salesman, it would have learned about previous complaints of sexual misconduct, and the cost of negligent hiring could have been avoided (SMO, 2001). In another case (Tallahassee Furniture Co. v. Harrison, 1991), a company was ordered to pay $2.5 million after the court found it liable for negligent hiring. A company employee delivered furniture to Mary Harrison's home. After entering the home, the employee raped and stabbed Harrison. The employee had a long history of psychiatric hospitalization and drug abuse. The court ruled that the company should have conducted a background check on the employee before giving him a job that afforded access to customers' homes (Anderson 2002).

Scary statistics

• The National Institute for Occupational Safety and Health listed homicide as a leading cause of work-related death in the United States with some 750 workplace killings a year recorded in 1980 (Bensimon 1994).
  
• The U.S. Bureau of Labor Statistics released the 1993 figure of 1,063 homicides on the job, and of those 59 were killed by co- workers or disgruntled ex-employees (BLS 1994).
  
• The 1993 shooting spree at a Chuck E Cheese's fast-food restaurant in a Denver suburb, where a fired kitchen worker killed four employees and wounded a fifth.
  
• In 1993 an ex-employee at Fireman's Fund Insurance Co. in Tampa, Fl., opened fire on former colleagues, killing three men and critically wounded two women, and then killed himself.
  
• The 1986 attack on an Edmond, Oklahoma., post office, where 14 people were killed and six others were wounded by a letter carrier who had been reprimanded (Kurland 1993).
  

Employers are increasingly being held liable for employees' negligence and other wrongful and criminal acts, and both the number of negligence suits and the amounts of damages involved are increasing. Courts are toughening their definition of reasonable care, and this is expected to intensify as available security systems become more sophisticated.

References

Anderson T. (2002) Elsewhere in the courts. Security Management. www.securitymanagement.com.

Benismon H. F. (1994). Violence in the workplace. Training and Development. 18- 28.

Brobst J. Jr., CPO, CSS. (1999). Security personnel selection. Security Planning and Supervision. 17- 23.

Bureau of Labor Statistics (1994, August). Census of Fatal Occupational Injuries.

Employee handbooks (2001). Huntsville: Telemasp Bulletin. 21- 23.

Hunter R. (2002). Focus on employment. Security Management. www.securitymanagement.com.

Kurland M. O. (1993). Workplace violence. Risk Management. 76.

Nixon W. B. (2002). What you don't know can hurt you. Pre-employment Screening. www.securitymanagement.com.

Sennewald, C. A. & Christman J. (1992). Selecting Security Personnel. Shoplifting. 21- 45.