As an employer, you have a lot of responsibilities. You are, in some cases, even responsible for the actions of your employees.
There’s a legal theory called respondeat superior. Under this theory, there may be the opportunity for a plaintiff to seek damages from the employer of someone who’s behaved negligently. That doesn’t mean you’re responsible for every bad thing an employee might do, but there is a potential for liability under some circumstances.
In these situations, the most relevant factor is whether the employee was acting within the scope of their employment when they were, for example in a car accident. The scope of their work goes beyond just being on the clock at the time when the accident or injury occurs. Instead, it means your employee was performing something directly related to their job.
On the other hand, there are also cases where your employee might have been on the clock, yet they aren’t working within the scope of their employment.
These situations are a bit different from negligent hiring in many cases.
With a negligent hiring scenario, as an employer, you owe a duty to hire people who have the required skills to do their jobs properly.
If you made bad hiring decisions, they could be considered negligent. If a person was hurt, the victim could hold you responsible. It’s a complex legal standard because there are primarily situations where you couldn’t expect that you made a bad hire.
Regardless, the following are things every employee should know about negligent hiring and how to avoid it.
What is Negligent Hiring?
Legally, a negligent hiring claim can be brought if an injured party believes you, as an employer, should have known about an employee’s potentially dangerous background. If you have an employee who hurts someone else, you may be held liable if you should have discovered the potential risk through a reasonable background check.
When there’s a claim of negligent hiring, you should have, under this legal standard, should have known your employee could be a potential danger to your customers or employees. It falls into the broader category of a personal injury claim.
Your legal responsibility is to hire employees who are competent and make sure you thoroughly vet them.
If a negligent hiring claim were brought against you, the court is being asked to determine if you used reasonable care when you both selected and retained an employee for the responsibilities you’re asking them to perform.
Negligent retention is the same idea as negligent hiring, but it tends to relate more to putting an employee in a position that you should have known might lead to the employee committing a wrong-doing against a third party.
What About Discrimination Laws?
Here’s where it gets particularly tricky for employers, and it’s a balancing act—what about discrimination laws guiding hiring decisions? There are federal and state guidelines and regulations regarding what you can and can’t do and ask during the hiring process.
For example, unless your employee handles money, many states prevent you from running credit checks.
There may be limitations on asking about or making hiring decisions based on someone’s criminal background too.
There’s a term called ban the box questions. Many states have passed laws preventing employers from asking job applicants about their criminal history. Around a dozen states already have these laws in place, and cities and counties may have these laws too.
If a state has a so-called ban the box law, you may not be able to ask about either arrests or convictions, and if you violate these laws, you might face civil and criminal action. The goal is to help people rebuild their lives regardless of their past, but there are limitations to these laws. For example, in some states, you have to have over a certain number of employees for these laws to apply to your business.
In other states, there may be laws that prevent you from asking about criminal history on the application itself, but you may be able to ask if you bring someone in for an interview. You may also be able to ask about criminal convictions for particular positions.
The best thing you can do in general is to talk to an attorney who understands the laws in your state.
Avoiding Negligent Hiring
Along with talking to an attorney who understands employment law, there are some other things you can do to avoid negligent hiring. The most important thing is to check applicants’ backgrounds before you hire them. Be as thorough as your state and local allows for screening, interviewing and doing pre-employment testing.
Right now, employers are struggling to fill open positions, but don’t let that lead you toward the wrong hiring decision.
When possible, conduct background checks and enforce drug testing. If you’re legally able to, do a credit check and contact any previous employers. Ask for references and check them. If candidates make claims about their education, or maybe an additional certification or credential they have, verify those as well.
The particular background checks you can and should perform on a job candidate depend on not just the law where your business is located but also what industry you’re in and what the particular role is.
For example, if any type of driving is involved in the position, then you will need to make sure you check their driving record.
You’ll also have to make a decision as far as what crimes or incidents that you find on a background check would inherently disqualify someone for a position.
Factors to base that on will include how long it’s been since the offense occurred and the severity, as well as whether there are repeat offenses, and the type of job you’re hiring for.
When you take the time from the start to hire the most qualified candidates, there are business benefits down the road too. You’re creating a better business overall, even if it takes you more time on the front end to hire people.