Negligent Hiringretention

.. le to thoroughly investigate the backgrounds of the applicants. Employers generally are viewed by courts as being accountable for thier ( Negligent ) actions, if: * A Link can be established between employee actions and third-party injury. * Information concerning the employees unfitness, instability, or unsuitability for a job was available before hiring or became available after hiring. * It can be established that such information is or was used to make a decision thereby taking the public out of harms way.

If these criteria are met, the level of care demanded from an employer is higher ( 6 ) Extensive state and Federal legislation and executive orders exist concerning equal employment opportunity EEO that directly affects business employment practices. Most statutory legislation and federal executive orders are designed to prohibit employment discrimination based on race, color, national origin, gender, age, and handicap. Title VII the hallmark statute in this field of law, addresses illegal discrimination in three areas: Intentional discrimination, Disparate impact, and Disparate treatment. The most controversial of these is Disparate impact. The landmark US Supreme court case Griggs vs. Duke Power ( 401 U.S.

424 { 1971 } ) interpreted disparate impact as any nuetral employment practice that adversly 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 ( See New York City Transit Authority vs. Beazer 19 FEP Cases { 1979}); or 3) for a so called business necessity. ( 7 ) Examples of adverse impact theories include: * Requiring a job applicant to meet minimum height and weight specifications ( CFR 1607 { 1976}) * Using arrest and conviction records in selection ( See Green vs.

Missouri Pacific Railroad Co., 523 F. 2d 1290, 10 FEP Cases 1409 ) * Applying a rigid clean-record policy as part of an employment procedure ( See EEOC decision no. 71-797) ourts hearing cases alleging disparate impact that focus on employment policies and practices are neutral but discriminatory in effects. Courts, however, look at consequences rather than motive, effect rather than purpose. (8) PLAINTIFFS USUALLY PREVAIL IN THESE ACTIONS It is important to note that plaintiff successes far outweigh successful defenses in negligent hiring/retention actions. There are some avenues of defense, however, that should be addressed.

These include: STATE LEGISLATIVE RESTRICTIONS. Many states have passed laws that limit employer access to certain personal background information of a job applicant. A prime example are laws that restrict access to criminal conviction records. 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 applied. ( See Guillermo vs, Brennan, 691 F.

Supp. 1151 {N.D. Ill. 1988}.) In this example, a person who was convicted of theft was applying for a job as a laborer ( who 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. LABOR CONTRACT If an employer is bound by contract to follow a procedure for employing persons and the employer follows the contract, his or her exposure to actions could and probably would be reduced. PROPER NEXUS IN CAUSATION To prove a case of negligent hiring/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.

Many Human resources managers have interpreted the Supreme Courts Griggs EEO Opinion too narrowly. These supervisors might conclude that the manifest 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 dispararte 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. effective and safe job performance includes reducing unnecessary public risks when making employment decisions.

If there is a Bona Fida need to affect a protected class adversly so that a particular job may be performed effectively and safely, claim the business necessity exception. By Ignoring such exceptions, the human resources manager may be increasing his or her exposure to negligent hiring/retention claims. Prudent human resources professionals also must address the need of awareness and understanding associated with the legal theory og negligent hiring/retention. They should balance this area of the law with equal employment mandates and privacy considerations and develop basic pre- and post- employment policies and practices. The EEO exceptions allowed under business necessity should be persued aggressively whenever appropriate. Place particular emphasis on the pre-employment stage, and management should adhere consistently to prudent preemployment procedures. Some guidelines are available that may help derive complete background information about job applicants.

Although they are not new, some of these proposals are controversial and thier use should be governed by an employer’s need for certain information, state and federal laws ( e.g. criminal convictions information ). 1) Require all job applicants to complete an employment application form that meets federal, state, and local employment related laws. Also require applicants to sign the application form, signifying that all the information provided is truthful and accurate. (10) As part of the application process obtain the job seeker’s written agreement to perform a background check (11). In addition to basic information (name, address, education and employment history), employers who can show a definitive need for facts regarding criminal convictions should require this information as well.

Remember, If a higher degree of care is required between a business and it’s customers and if potential harm to the customer ( or any third party) is foreseeable, the companies liability automatically is greater. Also request and obtain copies of any professional license or degrees an applicant claims to have. 2) Conduct a nondiscriminatory job interview using the completed application to clarify and confirm information supplied by the applicant. The interview also provides an opportunity for an employer to determine whether an applicant is fit for the job which he or she applied. Use this opportunity to pursue and resolve any doubts about the applicant .

Empolyers who do not conduct a job interview follow a hit and miss employment philosophy. 3) Check the applicant’s employment references so that information supplied by the applicant can be confirmed. Base the inquiry on the job applied for. (13) Many of the cases previously discussed address the need to obtain references. None of the cases however, touvch on the problems employers encounter when they try to obtain employment references from past employers. Typically, the employer attempting to obtain a reference is concerned about invading the applicants privacy.

Previous employers are often guarded in thier comments – for fear of a potential libel suit being filed by the former employee. Many past employers refuse to provide information and simply say ” No Comment. ” Even if the human resources professional is unable to secure information from previous employers, at least the record is established that an attempt was made to obtain these references. 4) For high-risk, Medical-related occupations and job openings that require extensive physical exertion, a medical history request and a pre-employment physical examination, including a drug and alcohol test should be required as well. Inquire as to the applicants past and present medical and physical conditions, including illnesses, injuries or other conditions that could impair safe and effective job performance.

5) All sources of information should be documented in writing whenever possible, including the results of job interviews. Many cases hinge on being able to produce a written document in court. These strategies should help human resources managers obtain much of the information needed to make employment decisions that result in hiring safe and capable employees. These guidlines also serve to reduce exposure to negligent hiring/retention claims, thus minimizing EEO Challenges. Footnotes 1- See in general, the following sources for background about the ” at-will” employment doctrine: Fenton, J., and Timmins, S., ” the at will Employment doctrine: Implications and recomendations for the small business firm,” Journal of small business management, Jan 1982, p32 ;Hames, D., ” the current status of employment-at will,” Labor law journal. Jan 1988, pp19-32; Greylin, M., ” Fired Managers winning more lawsuits,” The wall street journal 7 Sep 1989 page b-1.

2- Fenton, J., ” the negligent hiring and retention doctrine,” Nursing Management Sep 1989, p28. 3- Restatement ( Second), Agency 219 (1957). 4- Brill, R. L., ” The liability of an employer for the willfull torts of his servants,” Chi-Kent, Law Review. Jan 1968.

See also Reibstien, L., ” Firms facing lawsuits for hiring people who then commit crimes,” The wall street journal april 30, 1987 p.19. 5-North, J.C., ” The responsibility of Employers for the action of thier employees: The negligent hiring theory of Liability,” Chi-Kent Law review. February 1970 p.719. 6- Gregory, D., ” Reducing the risk of negligence in hiring,” Employee relations law journal. Summer 1988, p34.

7- In addition to the business necessity exception are section 703 exceptions called Bona Fida occupational qualifications (BFOQ). These narrowly construed exceptions encompass those instances in which legal discrimination based on gender, religion, or national origin ( But Never race) are practiced and are reasonably necessary to the usual operation of a particular job or enterprise. 8- Blumrosen, H., ” Strangers in Paradise: Griggs vs. Duke Power Co. and the concept of Employment Discrimination,” Michigan Law Review, 1972. 9- See, In general, ” Employer Liability for the criminal acts of employees under negligent hiring theory: Ponticas vs.

K.M.S. Investments,” Minnesota Law Review. 1303 (1984) 10- Not following this basic procedure could imply employee negligence. See Weiss vs. Furniture in the raw, 62 Misc.

2d 283, 306 N.Y.S. 2d 253 ( N.Y. Civ. Ct. 1969). 11- Gregory, D., Op.

cit., P.40. 12- Jacobs, R., ” Defamation and Negligence in the Workplace,” Labor Law Review. Sep 1989 p.52. 13 Ibid.