Navigating the Minefield of Negligent Hiring

Are you prepared to pay millions of dollars for negligent hiring? It may sound far-fetched but a negligent hiring lawsuit against a trucking firm in Illinois in 2019 resulted in a $54 million payout after a trucker with a highly dubious driving record crashed into a Jeep, seriously injuring the other driver, by driving the wrong way over the speed limit.

The Cook County Circuit Court ordered the trucking company and a contracting firm to pay the victim compensatory damages of more than $19,000,000 and punitive damages of $35 million after investigations revealed that the truck driver had a history of violations and licence suspensions as well as four counts of felony reckless aggravated assault on four women using a tyre iron.

So How is Negligent Hiring Judged?

Employers are legally bound to use ‘reasonable care’ when hiring new recruits to ensure they don’t hire individuals that could pose a threat of injury to fellow members of staff, the public, or at the workplace in general.

Let’s say you hire an individual that unbeknown to you has a history of violence who then assaults and injures an employee or client. The injured person can file a Negligent Hiring claim against the company to seek compensation for their injuries. If investigations reveal that the company didn’t carry out proper background screening checks to ensure the new recruit didn’t have any previous criminal convictions or perhaps was fired from a previous job for violence then the company could be liable.

The word ‘injury’ in this case can be used to describe various kinds of suffering that victims might experience as a result of verbal, physical, psychological or sexual abuse. The compensation for those ‘injuries’ can be far reaching, including loss of income and whatever the judges decide as ‘punitive damages’ or punishment for the company neglecting to carry out due diligence when hiring.

Being negligent when hiring means failing to conduct proper background screening checks before recruiting someone, including reference checks, post-employment verifications, credit checks, and criminal record checks.

Negligent Hiring Elements

There are several elements that are considered in a negligent hiring case and they will also depend on state laws. Here are some fundamental elements of negligent hiring: 

• Businesses have a duty to hire competent employees

• Did the employer breach their duty to hire competent employees?

• Did the employer’s breach cause an injury to the plaintiff?

• The law permits that any any injuries suffered by the plaintiff must be compensated

How to Avoid Negligent Hiring Claims

Here are some tips on ways employers can prevent negligent hiring claims.

The first red flag might be a large gap of several years in a candidate’s employment history. While this is perfectly normal for say a graduate who spent a year or so travelling before committing to work or someone who has been unemployed for a while, in some cases the lack of any work history could mean they have spent time behind bars for a criminal offence so it’s worth double checking what the candidate was doing during that period.

If you are hiring in the US, then you need to carry out criminal background checks in other states that the candidate has lived and worked in before, as well as the state you are hiring in. Keep in mind the federal and state laws regarding background checks as they are different in each state. 

Extending the scope of your investigations of course means extra up-front costs but those costs certainly outweigh the potential costs of a negligent hiring claim if the candidate does turn out to be a criminal.

Of course not everyone with a criminal record is a bad person, hence campaigns such as Ban the Box, which have removed the check box on application forms where applicants have to declare whether they have a criminal record. The reason being that over the past decade or so, many people have been refused work because they had a criminal record for minor crimes and misdemeanours that don’t necessarily make the person a career criminal. This, however, also puts the employer somewhat between a rock and a hard place. Even if a candidate does have a criminal record, the prospective employer has to use sound judgement in order not to face the possibility of being accused of discriminating against an individual just because they have a criminal record.

If your background checks reveal that a candidate has a criminal record, you have to consider things like, how long ago the crime was committed and the seriousness of the crime. If the crime was a minor offence committed a decade ago, your decision not to hire based solely on that could land you with a lawsuit from the Equal Employment Opportunity Commission.

Next you want to try and verify references given by the candidate from former employers. Sometimes a quick phone call or an email is enough to verify whether an applicant has been truthful on their application. However, you can’t also expect an immediate response from former employers. They are not obligated to respond and there could be all manner of reasons you don’t get an immediate response. The former employer might no longer hold that position or their contact details have changed. 

The point here is that you document and record all your attempts to verify the information given to you by the applicant. Even if your attempts are fruitless, you at least have evidence to back up your efforts in the event a negligent hiring claim arises in future.

Use Strategic Interview Techniques

There’s nothing like meeting someone face to face to get a better idea of whether they could be a suitable employee. Even if you can’t meet the candidate in person, you can still use a video conference call to ask a few pointed questions and gauge the response. Don’t be afraid to ask direct and possibly uncomfortable questions like, “Do you use any illegal drugs?” or “Why is there a 2-year gap in your employment history?”.

Remember that you could be held accountable if you made a hire without asking these kinds of questions to confirm any discrepancies. The candidate might have perfectly reasonable explanations and shouldn’t be offended by you asking.

How We Can Help You Avoid Negligent Hiring

Intelimasters can help you streamline your background checking process with our turnkey screening services. We can help verify whether a person has been convicted of any types of crimes or administrative offences in their country of origin or residence, and the seriousness of any offences. Our services also include ID authentication and credit checks to give you peace of mind that you are hiring people who will represent your company well and significantly reduce the risk of potential lawsuits from a negligent hire.

Intelimasters is a background screening agency, not a law firm. This article is for informational purposes only. Nothing in it should be considered as legal advice. We encourage you to consult with legal counsel regarding your specific business and/or individual needs.


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