Eliminating "Bad Apples":
Solutions For Avoiding Negligent Hiring And Inefficient Workers

Molly King
April 30, 2004

While many employing entities cope with the numbers of "bad apples" in their work environments, others are taking advantage of policy changes to further avoid these weak, costly employees. The best step towards prevention begins with a change in hiring policies. To decrease the number of ineffective, unethical, and dangerous employees that can damage an employer's reputation; changes in background checks, pre-employment testing, and recruiting methods will assist in producing higher quality employees.

Definition of Negligent Hiring
One of the major problems facing employers in business and criminal justice is negligent hiring. This theory holds that employers who know or have reason to believe that a worker poses a threat to the public may be liable for the damages caused by that employee (Hunter 2002). Negligent hiring involves three main concepts:

1. An employer is held liable for the actions of their employers
   An employer may be directly liable if it hires, with negligence, an applicant for employment that involves an unreasonable risk of injury to others (Ferguson 2003). Employers can be held liable for hiring an employee who later performs a prosecutable action on the basis that they placed the employee in a position that allowed the employed individual to execute their offense.
   
2. Negligent hiring is not the same as "Respondeat Superior"
   Negligent hiring varies slightly from "respondeat superior". The respondeat superior doctrine only holds the employer liable for the wrongs or negligence of an employee acting within the scope of the employee's duties (Hunter 2002). In contrast, under the negligent hiring doctrine an employer may be liable for what is performed by the employee outside the scope of employment, when not at work or after work hours (Hunter 2002).
3. Negligent hiring is still applicable even with no statutes present
   Negligent hiring is a concern for employers even if no statute mandates a background check for a particular position. The absence of such statues does not mean that investigation of the applicant is not required. A common law duty of reasonable care may actually obligate an employer to conduct a criminal record check or the use of other screening methods even without the presence of statues mandating employers to do so (Ferguson 2003).

Criteria for Negligent Hiring
For an employer to be held liable for the actions of their employees there are a few sets of criteria to be examined in order to determine if their actions are in direct relation to their hiring.

1. An employment relationship must be present
   Primarily, there must be an employment relationship in existence (Hunter 2002). This requires the individual to be hired under the requirements for the employment as established by the employer. The relationship between the employer and employee must be work related.
   
2. Failure to find history of similar behavior of the applicant.
   In order for an plaintiff to sue an employer for negligent hiring, they must show that the company failed to determine that the employee had a history of similar behavior. The wrongful actions performed by the employee must be consistent with the dangerous propensity he or she exhibited on prior occasions (Ferguson 2003). An example of this criterion was apparent in the case of Reed vs. Kelly. In this case, a security guard sexually assaulted a woman at the building where he worked, but the court granted summary judgment to the employer. The reasoning was that although the guard had been charged five years earlier in connection with a domestic violence incident and fired from a previous job three years earlier after a fight with a coworker, these offenses were not consistent with sexual assault of a stranger (Ferguson 2003). Had they been consistent, the judgment may have differed finding the employer liable.
3. Lacking investigations
   What really starts the negligent hiring cycle involves the investigation, or lack of investigation, regarding potential employees. An employer's failure to investigate the background and training of an applicant may later be held against the employer in the court of law if the employee performs illegal actions that stems from their employment (Hunter 2002). If certain factors are revealed in the employment application process or during interviews with the applicant, these should lead an employer to further investigate into the applicant's background; particularly his or her criminal record. These factors include things such as short-term residencies, gaps in employment or admissions of criminal convictions (Hunter 2002). Without further examination of these red flags, liability may follow if the individual commits torturous or criminal acts after being hired.
4. Lack of actions by the employer following discovery of pertinent information
   An employer may also need to focus on their actions following the discovery of information found on an individual. The Idaho Supreme Court ruled that a company's failure to inquire about a prospective employee's previous termination and its employee assistance program's failure to alert staff when it learned the employee might pose a danger were sufficient evidence to support a negligent hiring claim (Hunter 2002). The employer may be found liable if a they are aware of an employee whom may pose a danger and does nothing to terminate this employee, and harm subsequently is done. An example of this was present in the Doe vs. Garcia case. Following a review by the hospital of his application, including contact with one of his past employers, which revealed nothing out of the ordinary, Garcia was hired. Shortly following his hiring, Garcia was reprimanded for encouraging underage drinking at the work place. He had also developed a relationship with a patient at the hospital he was working at, which carried over past Garcia's termination from the hospital. During this period of time, Garcia began sexually molesting the patient who was a minor at the time. The victim's parents sued against Garcia and the hospital who had hired him. The court ruled at the Supreme Court level in Idaho that there was sufficient evidence to support the negligent hiring. The reason for this action was following Garcia's reprimand for the underage drinking encouragement, he had met with employees assistance program (EAP) for what he termed "being quite preoccupied with sex." During these sessions, Garcia admitted to a counselor that he had been terminated from a previous job for sexually molesting a patient. Staff with EAPs were directly employed by the hospital, but they did not share Garcia's admission with the hospital's management (Hunter 2002). The wrongful acts later carried out by Garcia may not have occurred had his termination followed the revelation of his molestation background.
   
5. Hiring of independent contractors
   A major issue arises with liability when companies begin hiring out for services. When using independent contractors, few companies screen contract workers. Few client firms even require that the contractors they are hiring conduct background checks on their employees or subcontractors (Hunter 2002). The common reason for this is that ordinarily, employers are not held legally liable for the acts of independent contractors. In the case of Birrell v. Indiana Auto Sales & Repair, the court indicated that an employer is not usually liable for the negligence of an independent contractor, but noted exceptions to this (Hunter 2002). Liability can occur in instances where the contract requires the performance of intrinsically dangerous work or where the principal is by law or contract charged with performing the specific duty that caused the injury. Gleckman (1999) mentions that liability may also arise if the duties required by the contract workers undergo ratification by the employer, changing the original requirements of the hired contractor. In another court ruling, Camargo vs. Tjaarda Dairy, in California, the court felt that it is the responsibility of the hirer to select a competent and careful independent contractor and would be held liable for unlawful acts done by the contract workers.
   

Nature of the Job
A great number of courts feel that the investigations that should take place prior to hiring an individual must be reasonable in terms of the job the individual is applying for. The employer should consider the potential risk, harm, or injury that may occur to third parties if hiring the individual and conduct background investigations accordingly (Hunter 2002). What is meant by this standard involves the real risk of harm involved in certain industries as opposed to others. Industries that employ particularly vulnerable agents, such as day care or elder care may necessitate higher standards in reviewing backgrounds as opposed to other industries such as retail or engineering (Hunter 2002). Law enforcement, employers should take similar precautions to those in day or elder care. Employers hiring in the criminal justice system should consider the entities being placed at risk by hiring certain individuals. Criminal justice and protective service officials are placed in a position requiring them to care for not only the company they are working for but also society.

Enhancing Hiring Practices to Avoid Bad Apples
There are a number of methods of prevention to assist organizations in their reduction of ineffective and damaging employees. The goal for any employer is to reduce the total expense of their operations, which can be broken down to starting off on the right foot with all hiring practices. If one eliminates "bad apples", the cycle of harm often produced by such unethical and unproductive employees can be reduced or eliminated during hiring. A company can reduce ineffective and harmful employees as well as reducing their exposure to negligent hiring suits by doing effective and appropriate background checks on prospective employees (Hunter 2002). Effective background checks, coupled with successful recruitment, and psychological testing, an employer to improve their hiring practices immensely, resulting in more efficient, effective and ethical employees all around.

There are a number of methods to improving hiring practices within the criminal justice system. Agencies organized in various employment settings may benefit from an assessment of measures taken by the Los Angeles Police Department. Following an enormous need for new hires, the LAPD implemented a new administrative "take" on their hiring practices. Former Chief Bernard C. Parks of the LAPD was granted authority to create a division within the department that would be solely dedicated to the recruitment and hiring of new officers. By creating a division and assigning specific roles to the employees within it, a more intense focus would be spent on reviewing potential employees. The division is called Recruitment and Employment Division (RED), and combines the responsibilities of recruitment and the handling of pre-employment background investigations under one command (Webb & Bratton 2003). Previously, recruitment and selection was mixed with other functions such as equal employment administration and personnel functions.

The problems that had been occurring in the hiring process were due to the fact that the managers from the various commands had little time to dedicate to hiring practices. Even with this slowing the process, the recruitment and background investigations were located away from their command, making it more difficult to have daily oversight or contact with these processes (Webb & Bratton 2003). These problems are very likely to be present in most criminal justice entities, particularly over worked and over loaded police departments. The implementation of RED, located in close proximity with the police, proved to be extremely beneficial in encouraging communication and cooperation between the personnel department and RED during hiring processes (Webb & Bratton 2003). Following the example portrayed by the LAPD, prevention of negligent hiring can be more effective. The following methods have a focus on police departments looking to improve their pool of applicants and those working through the hiring process.

1. Background Checks
   The best method for eliminating poor work candidates involves the implementation of effective and consistent background checks. An extremely time consuming step in the hiring process, criminal justice agencies must develop methods for improving the time efficiency involved with background investigations. An effective background investigation can determine whether applicants will be able to function in the necessary scenarios and areas required of them in their employment position. The results from an investigation can provide information on a candidate in regards to predicting their on-the-job behavior (Fuss & Snowden 2004). A background check is qualified as negative when those who have characteristics that include military or employment disciplinary incidents and multiple appearances in civil court. These individuals should be red flags to any hiring entity, as they pose a threat to ethical dilemmas they may face in the job. Candidates that receive excellent ratings following investigations of their previous employment and life experiences have been shown to have lower incidences of misconduct while those deemed with disappointing background checks were found to have higher rates of absenteeism. Completing a thorough background investigation on a potential employee has the possibility of making the difference between putting a qualified individual on our public streets to protect and serve, or an unqualified, tainted individual who can cause harm to themselves, society, the hiring department, and the reputation of the their employer (Fuss & Snowden 2004).
   
   The important component to an effective and detailed background investigation is the investigator themselves. Former Chief Bernard C. Parks believed strongly in this. RED asserted that the development and implementation of strict accountability and accounting for all cases handled by background investigators can vastly improve investigations (Webb & Bratton 2003). In order to do this, RED required their investigators to keep a running tally of their work, including the candidate and the number of days the candidate has been in the hiring system. This tally is then examined by a supervisor in personnel, which can be commented upon in employee performance ratings. This gives a great check and balance system, as many qualified potential employees are lost because of the length of time it takes to complete such investigations. With the investigators being held responsible, a greater emphasis will automatically be placed on them to complete the background checks in an orderly and timely fashion. When they are not performing at a productive rate and the personnel department will be able to note this as they examine the tallies and number of candidates still being investigated, the LAPD has made it a rule to reassign the investigator.
   
   RED used other methods for increasing their efficiency in hiring, in particularly in regards to background checks. They insisted upon ensuring that expensive background investigations were only conducted on individuals that would be considered viable candidates (Webb &Bratton 2003). Prior to this, it had been common for a background investigation to be conducted and later be deemed useless as the individual investigated susequently failed a less expensive portion of the hiring process. This may include a drug test or personality test. Had they been given these weeding out methods prior to the investigation, a great deal of time and money would have been saved.
   
   There are a number of improvements RED implemented in order to increase the time necessary for hiring on a new officers with the LAPD. Included with the investigator requirements and a chronological order of preliminary hiring processes, RED also developed a place for an expeditor and electronic mail. Both improved efficiency as well as contact between entities. The expeditor was in charge of facilitating candidates through the hiring system (Webb & Bratton 2003). The expeditor had the responsibility to eliminate red tape standing in the way of candidate's steps in the hiring process. When delays occur in the process, they step in things move along. The other method used by RED has recruiters and background investigators with the capability to be contacted by candidates. Electronic mail and voice mail are provided to the employers and are mandated to inform candidates of their hiring status. Having these capabilities requires investigators to keep themselves in check on their speed and efficiency throughout the investigative process (Webb & Bratton 2003).
   
   
2. Psychological Testing and Questionnaires
   Employers have many methods for screening potential employees. Included in this array are background checks, resumes, interviews, civil records, and the ever increasingly popular questionnaires and psychological testing. With the proper use of these, employers have a substantial, non-expensive, method for screening employees before they ever enter into the more expensive and intensive portions of the hiring process (Ferguson 2002).
   
   RED uses one form of reviewing their candidates by using a Preliminary Background Questionnaire, commonly known as PBQ. This can be considered as a "self" de-selector for candidates who are obviously not qualified to work in the environment, office, or area they are applying due to their adverse background issues (Webb & Bratton 2003). This method of screening drastically reduces the number of unqualified candidates from the hiring pool. Starting with this method can make a drastic change in the filtering out process. To develop a personalized questionnaire for a specific position or department within criminal justice can assist in having a starting pool to work with that will decrease wasted efforts, time, and money on candidates that will later prove to be ineffective workers or unqualified candidates.
   
   There are a variety of tests employers can give to potential candidates. Tests can consist of questions that measure an applicant's intelligence and/or abilities, tests that can gauge the applicant's personality, and pre-employment test such as a polygraph or lie detector (Hughes 2002). Using these various methods in conjunction with one another can prove to assist employers in getting a more complete picture of a candidate's priorities and personality. With these tests, an employer can break down what may come out in the months to follow, an employee's actions and choices before they even enter into expensive background investigations.
   
   With a number of various standardized psychological testing, one of the more popular ones used throughout employers' hiring process is that of the "MMPI", or Minnesota Multiphasic Personality Inventory (Hughes 2002). Administered through simple paper-and-pencil methods, test takers read each statement on the test and are requested to choose whether a statement is true or false, and leave blank those they have no opinion on. Once the test is taken, the results will be compared to what a normal individual would select. The statements contained in the MMPI correspond to ten psychological scales or dimensions that focus on specific personality characteristics. What is hoped to be achieved through the pre-employment testing is to find candidates that possesses undesirable personality traits that would possibly render the individual unfit for the position the employer is hiring for and remove them from the candidate pool before the more costly testing (Hughes 2002).
   
   Another test an employer can use is called the Stanton Survey. Employers who use this screening tool are seeking the opinions of potential employees in regards to work-related theft and theft in general (Gulinello & Longmore-Ethridge 2004). By using this test, employers will hopefully avoid hiring individuals who are prone to thievery. The test's creator and marketer, Secure Point of Charlotte, North Carolina has suggested that applicants who score low on this survey tend to be easily distracted, unpredictable, impulsive, unable to delay gratification, are rebellious and nonconforming, all of which are extremely undesirable characteristics. Clients of this survey have found it to be an extremely effective tool in identifying candidates with integrity (Gulinello & Longmore-Ethridge 2004). This may be one characteristic highly placed on the list of necessities in a criminal justice and security position, as most roles within the system require extreme adherence to laws, regulations and statues, all more evident in individuals with ethical views which stem from integrity.
   
   
3. Recruitment
   For an agency to increase the quality in their pool of candidates, their focus must be on their methods of recruitment. Most police agencies and criminal justice entities find their recruits in the following areas:
   
   1. Job Fairs
   2. Colleges
   3. Military bases
   4. Community events
   These areas are chosen in hopes of finding qualified individuals (Webb & Bratton 2003). However, the interesting component to the hiring practices of departments is the actual numbers of individuals found through all the other venues besides the areas they focus their recruiting on. Recent statistics have indicated the three greatest areas for the LAPD's recruitment to be:
   
   1. The Los Angeles Times
   2. The Internet
   3. The Officers themselves
   The logical step for the LAPD, and other agencies to improve their recruiting, is to enhance these three areas. Development with local advertisement for recruiting, internet and referrals may improve the quality of individuals applying. Making applications more readily available through the internet may decrease the time and efforts associated with recruitment. As for referrals and general support for quality recruits, individual officers need to take an active interest in the selection of recruits, particularly in the quality, because one day, these individuals may be their coworkers, they partners or their supervisors (Webb & Bratton 2003).
   The recruiting officials should focus on the real attributes that make a qualified candidate. In police work, with such high levels of public scrutiny there are a select number of particular characteristics to look for (Ratchford 2003):
   
   1. Post-secondary education
   2. Knowledge and competencies to resolve uncertainties
   3. The ability to be adept to humanism
   4. Capacity for critical thinking
   5. The ability to not only endorse but promote the importance of ethics
   These components are universally important because the occupations in criminal justice and protective service professionals who can more than sufficiently comprehend their roles in elaborate cultural settings. They must do this for the welfare of citizens they are being held responsible for.
   

Conclusion
Although all organizations must be cautious of dangerous employees with criminal records and disappointing performance, those in the protective service realm must be particularly careful considering the direct contact an employee has with the safety and protection of individuals in the area they are serving. Improving hiring practices, including development of specific delegation of background checking, administering psychological testing, and careful choosing in the areas of recruitment, may all assist in obtaining more qualified applicants. Negligent hiring suits cost companies their reputation and a great deal of money. Avoiding such legal entanglements from the start of the hiring process will decrease the chances of selecting an individual who may damage an employer irreparably.

References

Ferguson, J. (2003). Negligent Hiring, Retention, and Supervision. Trial. Wasington: Vol. 39, Iss. 2; pg. 64-67.

Fuss, T. & Snowden, L. (2004). Importance of Background Investigation. Law & Order. Wilmette: Vol. 52, Iss. 3; pgs. 58-61.

Gleckman, M. (1999). "Crime Prevention/Community Relations" in Security Supervision: Theory and Practice of Asset Protection. S.J. Davis & R.R. Minion Eds. Massachusetts, Butterworth Heinemann.

Gulinello, J.J., Longmore-Etheridge, A. (2004). The Proper Prescription. Security Management. Arlington: Vol. 48, Iss. 3; pgs. 59-62.

Hughes, T. (2002). Soroka v Dayton Hudson Corporation: Legal Implications for Pre-employment Psychological Testing. Journal of Security Administration. Savannah: Vol. 25, Iss. 1; pg. 23.

Hunter, R. (2002). Past as Prologue Assessing Job Candidates. Security Management. Arlington, Vol. 46, Iss. 3; pg. 76-79.

Ratchford, L. F. (2003). Hiring the "Total Package." WomenPolice. East Lansing, Ontario Canada: Vol. 37, Iss. 2; pg. 4.

Webb, R. & Bratton, J.R. (2003). Recruitment Strategies and Successes. Law & Order. Wilmette: Vol. 51, Iss. 8; pg. 100.