Wednesday, October 20, 2004
Employee Screening - What is Negligent Hiring?
An action for negligent hiring, retention or supervision may be advanced, and liability on the employer imposed, if it can be shown that the employer knew, or should have known through the course of reasonable investigation at the time of hiring, that the employee posed a threat of injury to others.
The three elements of a negligent hiring claim:
1. The employee must be unfit for employment. This determination is based on the nature of the job and the likelihood that the hiring of an unfit employee will cause harm to others.
2. The employer must have actual or constructive knowledge of the employee's unfitness. An employer may be held to possess constructive knowledge of the employee's unfitness where it would have been disclosed by a reasonable inquiry or investigation.
3. The employer's hiring of the unfit employee must be the cause of the third party's injury.
California recognizes a cause of action against employers for negligent hiring.
“Liability for negligent hiring and supervision based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” Mendoza v. Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998)
WHO IS LIABLE?
An employer may be liable for negligent hiring if:
•It knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him. Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 823, 843.
•The Plaintiff demonstrates that the authentication of the unfit employee’s credentials would have shown the unfitness thereby precluding the unfit employee’s employment. Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1566.
WHAT ARE THE CONSEQUENCES?
•Nursing home liable for $235,000 for negligent hiring of unlicensed nurse, with 56 prior criminal convictions, who assaulted 80-year-old visitor; Deerings West Nursing Center v. Scott
•Employee with criminal record forces child to perform oral sex; $1.75 million award for negligent hiring and retention; Doe v. MCLO
•Furniture company liable for $2.5 million for negligent hiring and retention of deliveryman who savagely attacked woman customer in her home; Tallahassee Furniture Co., Inc. v. Harrison
•Employer settles for $2.5 million suit seeking to hold it liable for negligent hiring and entrustment of intoxicated security guard who had on-duty traffic accident in company car which killed himself and another motorist; Butler v. Hertz Corp
HOW ARE YOUR PEERS REDUCING LIABILITY?
An employer having no other reasonable basis upon which to believe an applicant is unfit, may avoid liability if it takes reasonable steps to authenticate the applicant’s credentials.
A 2003 study by Virginia-based Society for Human Resource Management (SHRM) revealed that 80 percent of the companies surveyed utilized employee screening, by performing reference and criminal checks on their employees.
Employee Screening can be a useful tool, not only in reducing liability, but also in preventing workplace violence and misconduct in the first place.
The three elements of a negligent hiring claim:
1. The employee must be unfit for employment. This determination is based on the nature of the job and the likelihood that the hiring of an unfit employee will cause harm to others.
2. The employer must have actual or constructive knowledge of the employee's unfitness. An employer may be held to possess constructive knowledge of the employee's unfitness where it would have been disclosed by a reasonable inquiry or investigation.
3. The employer's hiring of the unfit employee must be the cause of the third party's injury.
California recognizes a cause of action against employers for negligent hiring.
“Liability for negligent hiring and supervision based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” Mendoza v. Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998)
WHO IS LIABLE?
An employer may be liable for negligent hiring if:
•It knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him. Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 823, 843.
•The Plaintiff demonstrates that the authentication of the unfit employee’s credentials would have shown the unfitness thereby precluding the unfit employee’s employment. Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1566.
WHAT ARE THE CONSEQUENCES?
•Nursing home liable for $235,000 for negligent hiring of unlicensed nurse, with 56 prior criminal convictions, who assaulted 80-year-old visitor; Deerings West Nursing Center v. Scott
•Employee with criminal record forces child to perform oral sex; $1.75 million award for negligent hiring and retention; Doe v. MCLO
•Furniture company liable for $2.5 million for negligent hiring and retention of deliveryman who savagely attacked woman customer in her home; Tallahassee Furniture Co., Inc. v. Harrison
•Employer settles for $2.5 million suit seeking to hold it liable for negligent hiring and entrustment of intoxicated security guard who had on-duty traffic accident in company car which killed himself and another motorist; Butler v. Hertz Corp
HOW ARE YOUR PEERS REDUCING LIABILITY?
An employer having no other reasonable basis upon which to believe an applicant is unfit, may avoid liability if it takes reasonable steps to authenticate the applicant’s credentials.
A 2003 study by Virginia-based Society for Human Resource Management (SHRM) revealed that 80 percent of the companies surveyed utilized employee screening, by performing reference and criminal checks on their employees.
Employee Screening can be a useful tool, not only in reducing liability, but also in preventing workplace violence and misconduct in the first place.
