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What is Negligent Hiring Liability?

nhl.pngAccording to an article published by SHRM (Society for Human Resource Management), Negligent Hiring is "the failure of the employer to investigate a job applicant's work experience, character, criminal history and other relevant data prior to the hiring of an employee." Negligent hiring liability holds employers responsible both for what they do know and what they should have known about their employees. It can even hold employers responsible for employees’ actions off the job. Courts have repeatedly affirmed that employers have a duty to exercise reasonable care in hiring individuals who, because of the nature of their employment, may pose a threat to the public.

Negligent hiring is particularly implicated in the background check portion of an employer’s hiring process. There are specific state and federal regulations that require employers to do background checks in connection with hiring which vary by the industry. Moreover, there are cases in which courts have found an employer breached its duty when it failed to adequately inquire about an employee’s criminal history. However, an employer is not negligent when it conducts a reasonable background investigation and where the wrong committed was not foreseeable based on the nature of any previous criminal conduct by the employee.

Law requires injured third parties to prove the following elements to prove negligent hiring: (a) a duty owed by the employer in selecting or retaining the employee; (b) breach of that duty; (c) the breach of that duty must be the cause-in-fact of the injury; (d) the resulting harm must fall within the scope of the employer’s duty; and (e) damages sustained by the third party.

There are certain state and federal statutes and regulations that govern whether an employer is required to conduct a background check in connection with hiring. Employers should make sure they are in compliance with these statutes and regulations. Moreover, employers should consider the nature of the work that they do and the probability that a third person would be injured at the hands of one of their employees. If this analysis shows that there is a chance that third persons could be injured at the hands of an employer’s employees, then an employer may want to consider doing more research during the hiring process to minimize the risk of a negligent hiring claim.

Costs of Negligent Hiring Liability

According to the article, Avoiding Negligent Hiring Lawsuits (HR Management Magazine), "Average settlements in negligent hiring lawsuits are now approaching one million dollars." Our Society today, more than ever, is highly litigious. Your organization can, and will, be held liable for the criminal or violent acts of its employees. The costs are too great to put your organization at risk by hiring employees without performing and documenting proper due diligence in your hiring decisions. "Juries in such cases will assume that if you could have known you were hiring someone dangerous or unfit for a job, you should have known."

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