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... be proven for a PEO/company / employer to be liable for negligent hiring. First, there must be an employment relationship between the client and the employee that existed at the time of the injury to the third party or parties. West Virginia is one of the states that extends liability not only for the negligent hiring of an employee, but also for the negligent hiring of independent contractors. (7) The second element that must be proven is that the wrongful act of the employee was reasonably foreseeable given the nature of his or her job.
Third, you must have known or should have known that the employee was incompetent or dangerous. Lastly, the injury to the third party or parties must have been caused by the hiring of the employee. This is proven by showing that the employee came into contact with the third party through the employee's job at hand. An organization's liability for negligent hiring frequently turns on whether they knew or should have known that the employee in question was incompetent or full of danger. Businesses are not responsible for the employee's wrongful acts if you did not know that the employee was incompetent or dangerous or if a reasonable investigation by the business, would not have revealed that information. The reasonableness of an investigation depends on two things: (1) The nature of the job duties the prospective employee will be performing (2) The potential risk of harm to third parties that could result from the conduct of an unfit employee.
There is only one true difference between negligent hiring and negligent retention: TIMING. Negligent retention occurs after an employee has been hired, and you become aware, that the employee may be dangerous. If you learn of an employee's unfitness after you have hired the employee and fail to take any corrective action or actions, you then become liable for negligent retention. Aside from the timing element, legal liability is the same under both negligent hiring and negligent retention. The Texas Supreme Court has sided with a woman who sued The Kirby Vacuum Cleaner Company because she said she was raped by a door-to-door salesman from the company.
The divided court ruled that the Kirby Company should have required its distributor to do a background check before hiring salesman Mickey Carter, which would have revealed previous complaints of sexual misconduct. "I hope this decision will cause Kirby to change it's ways to make sure that criminals are not sent into people's homes to sell Kirby vacuum cleaners, " the rape victim said in a statement. "I also hope that it will prevent another woman from having to go through what my family and I have been through. " Justice Raul Gonzalez said Kirby's way of doing business - selling its products in customer's homes - poses a potential danger. "Kirby dealers, required to do in-home demonstrations, gain access to homes by virtue of the Kirby name. A person of ordinary intelligence should anticipate that an unsuitable dealer would pose a risk of harm, " he wrote. The victim told authorities that Mickey Carter raped her in her Seguin, Texas home as her children slept in the next room. (8) Most courts hold that the duty of the employer is to exercise reasonable care in hiring individuals who, due to the employment, may pose a threat of harm to others. The nature of the employment directly relates to the duty imposed upon the employer.
In situations where the job provides access to property or homes, or a special relationship exists between the employer and the victim, such as: customers, invitees, licensees, passenger, guests and others, the employer may have a duty to conduct a reasonable investigation into the employee's background. In addition, the employer's duty may extend only to victims within the sphere of foreseeable risks created by the employment. For instance, in Guidry - vs. - National Freight, Inc. (9) a Texas appellate court held that a trucking company did not have a duty to protect the plaintiff from the criminal acts of one of its drivers because the company could not have foreseen that the driver would stop to interact with the plaintiff to rape her. What can Peo's and employers do to avoid liability?
In order to avoid liability for negligent hiring and retention, business must establish careful methods of screening applicants and monitoring existing employees. There are several procedures that can be instituted the hiring process to reduce the chances of liability. First, require every job candidate to fill out an employment application that requires the candidate to list employment and educational history. The history should be reviewed to check for gaps of time that suggest that the candidate has had a problem that may not be indicated on the application, such as an incarceration period. Then ask the candidate follow-up questions about any gaps to get further information about him or her before making a hiring decision. The employment application should also require the candidate to list references who are not related to the candidate.
He or she should be required to sign a release as part of the application, giving permission to contact both references and former employers to get additional information about the candidate. Finally, the application should contain an affirmation clause that is signed by the applicant stating that the information given on the application is true and correct. Hiring for jobs in which the safety of third parties is particularly at issue may desire to inquire into the criminal history of the job applicant on the application. It is important to know that it is a violation of federal law to ask about the arrest records of potential employees. However, the applicant should be asked about prior convictions. If that is done, it must be disclosed that prior convictions were related to the job in question and were not used simply to bar employment of persons with a criminal conviction.
Second, conduct personal interviews of prospective employees. This gives the opportunity to follow up on information received in the job application, ask questions not covered in the application, and have another chance to get information from candidates that show whether they will be competent and safe employees. A personal interview also allows a personal assessment of a job candidate's character. Next, check references and contact former employers to ensure that there is no negative information about the candidate's background that the candidate did not disclose.
If a job candidate has a history of violence or other behavior that would make him or her unfit, references and former employers are likely to know about it. When contacting references and former employers, specifically inquire about the candidate's honesty and reliability, as well as whether he or she has any traits that would make him or her unfit as an employee, especially any problems with violence. Once an employee has been hired, still take care to monitor his or her fitness. For example, any allegation of misconduct by an employee should be thoroughly investigated. Also, any other incidents that indicate that the employee may be a danger to other persons must be dealt with by taking immediate corrective action to remove the potential threat to third persons.
The nature of the corrective action will depend on the seriousness of the employee's conduct. If the conduct was inappropriate, but not necessarily dangerous, it may be enough to simply discipline the employee. Respond to conduct on the part of an employee that causes harm to others, or is likely to result in harm to others in the future by either removing the employee from contact with other parties or by firing the employee so that any future harm is avoided. Furthermore, if an employee seeks to change positions or take on new job responsibilities, reevaluate his or her suitability for the new position and duties sought. Lastly, document all protective measures taken, including the dates that each measure was taken.
Job applications and personal interview notes should be kept with the employee's personnel file. Notes should be kept of all conversations with references and former employees, and they should also be included in the personnel file. In addition, all discipline or other corrective actions should be documented in detail and filed with the rest of the information kept by Human Resource or management. That documentation can be used to demonstrate the care was taken to ensure that employees hired and retained were safe and competent to the best of knowledge. On the other hand, Title VII and state EEO laws limit an employer's legal right not only to ask about arrests without convictions, but also to make decisions based on criminal records that are not job-related. (10) The American with Disabilities Act limits the ability to make pre-employment inquiries relating to a person's mental health. And, private sector employers are not allowed to submit job applications to polygraph tests.
Background checks and pre-employment tests also involve balancing an employer's need to know with individual 's protection from defamation or intrusions into their privacy. Many states recently have enacted "job reference immunity" laws designed to encourage companies to provide good-faith references to prospective employers without fear of liable suits. However, whether these statutes really change the rules are debatable. In order to conduct a reasonable investigation, the employer must take into account the severity of the potential risk of harm the employee may pose in the employment position. Depending upon the nature of the work, employers should make an appropriate investigation into the background of the employee by going beyond the job application form and interview by making an independent background check and in some instances, when it may be appropriate, look at the employee's driving record and criminal record. Typically state laws only allow the use of criminal conviction information if there is a direct relationship between the crime for which the job applicant was convicted and the job for which the person is applying.
In an example, a person who is convicted of theft applying for a job as a laborer (would have no contact with anything of significant monetary value). Using the person's conviction record would not be appropriate in considering him for employment. Perhaps not surprisingly, employers do not always welcome these guidelines. Some believe that certain EEOC guidance policies do not reflect a practical application of the principles of Title VII and claim that the EEOC "goes way too far" in its requirements for them to be considered reasonable. In one controversial interpretation, The Equal Employment Opportunity Commission's position is that an employer is precluded by [EEOC interpretation of] Title VII of the Civil Rights Act of 1964 from asking a potential employee about arrest records. The rationale behind this position is that arrests do not prove guilt and that screening out applicants with arrest records has an adverse impact on minorities. (11) Such a stance on the part of the EEOC places employers in somewhat of a double bind so that "every stage in the hiring process can subject the employer to legal liability, including discrimination claims and negligent hiring.
To prove a case of negligent hiring and or retention effectively, the accuser must show that information about the wrongdoer was available before or after hiring and was directly related to the injuries he or she suffered as a result of the individual hired by the employer. The landmark US Supreme Court case Griggs vs. Duke Power (12) interpreted disparate impact as any neutral employment practice that adversely affects a protected class of people (e. g. Blacks, women and so on). The court stipulated that discrimination could be practiced legally only: 1.
If a manifest relationship could be established between employment requirement and employee job performance. 2. In the event of safety considerations for a so-called business necessity. Examples of adverse impact theories include: &# 61623; Requiring a job applicant to meet minimum height and weight specifications &# 61623; Using arrest and conviction records in selection Many Human Resource professionals and managers have interpreted the Supreme Courts Griggs EEO Opinion too narrowly. These supervisors might conclude that the relationship needed to argue in favor of a business necessity exception in using a particular employment qualification is nearly impossible to attain. As such, the overly awed human resources professional might ignore the need to incorporate certain job requirements into a job description, fearing an EEO charge alleging disparate impact.
These managers, however, must look at each job and the effective and safe performance of that job, and then compare performance to equivalent and required job specifications. If there is a Bona Fide need to affect a protected class adversely so that a particular job may be performed effectively and safely, claim the business necessity exception. By ignoring such exceptions, the human resources and or management personnel manager may be increasing his or her exposure to negligent hiring / retention claims. Prudent Human Resources Professionals and Professional Employer Organizations must address the need of awareness and understanding associated with the legal theory of negligent hiring and retention.
Employers have a right to control the workplace. They can regulate access to the jobsite with security guard, physical barriers, identification requirements, and high-tech surveillance techniques. They also have broad discretion to search work areas in response to suspected employee misconduct and to monitor worker's telephone and E-mail communications. Employers/Clients, and Professional Employer Organizations also can be ready to enforce criminal laws against threats and violence, and to assist threatened employees in getting protective orders. California is one of the only states that now allow employers to petition for civil orders to enjoin work-place stalking.
Suspects (as stated earlier) also have rights however. Policies on searches and monitoring should be clearly communicated to avoid liability for privacy or wiretap violations. Work rules prohibiting violence, harassment, fighting, and weapons should be clearly stated and enforced evenly. If management acts too incautiously without investigation, or investigates unwisely, the accused could sue the client, employer, PEO or all of the above for invasion of privacy, defamation, false imprisonment, wrongful discharge, breach of contract and or job discrimination. To round up the summary of this thesis paper, it is understood that when it comes to employment relationships, not only does the liability of negligent hiring falls on all companies and organizations involved. One must not assume simply because the company does not write the employees paycheck, that they are exempt from the responsibility or actions of a temp / employee or contract employee.
Of course, in all actuality, the responsibility of the wrongful act falls with the employee / contract / or temporary worker, employees and staffing organizations must create a battle plan to prepare for this type of negativity. Creating a threat assessment team to analyze the risks present at the work site and then develop and implement a program to respond to those risks. In addition to physical modifications to facilities and administrative controls, training of supervisors and employees on violence-related issues is essential. A crisis management team should also be in place to respond effectively when an incident occurs. If these actions are taken, business cannot guarantee that they are always hiring the "prefect employee", but instead be prepared to deal with the battle that comes with hiring a "bad" employee. (2) Gregory, D. , "Reducing the risk of negligence in hiring, " Employee relations journal. Summer 1988 p 34. (4) "Employer Liability for the criminal acts of employees under negligent hiring theory: Ponticas vs.
K. M. S. Investments, " Minnesota Law Review. 1303 (1984) (5) Fenton, J. , "The negligent hiring and retention doctrine" Sept 1989 p 28 (6) Restatement (Second), Agency 219 1957 (7) James Rapp and Frank Carrington, "Victims' Rights: Law and Litigation P. 10 - 58 (8) Associated Press - January 02, 1999 (9) 944 S. W. 2 d 807, (Tex. App. -Austin 1997); see also, Comes v.
Mozilla Transport System, Inc. 831 P. 2 d 1316 (Colo. 1992) (10) Murray v. Modoc State Bank, 313 P. 2 d 304 (Kan. 1957) (11) Greylin, M. , "Fired Managers winning more lawsuits, " The Wall Street Journal 7 Sept. 1989 page b- 1. (12) Blumrosen, H. , "Strategies in Paradise: Griggs vs. Duke Power Co. and the concept of Employment Discrimination, " Michigan Law Review, 1972 Bibliography:
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