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Negligent
Hiring: An Employer’s Duty to Protect Everyone
(last updated November 2000)
An employer has a duty to protect
its employees, customers, clients, and visitors from injury
caused by their employees who the employer knows, or should
know, pose a risk of harm to others. When an employer violates
that duty, it may be liable for damages under the tort of
negligent hiring, negligent retention, or negligent supervision.
Balanced against the state and federal provisions protecting
employee privacy are the increasing demands upon employers
to be responsible for the actions of their employees. Current
case law establishes that an employer has a duty to exercise
reasonable care in hiring persons who, because of the nature
of the employment, could present a threat of injury to members
of the public.
In a recent case, a nursing home named Manor Park hired a janitor
who, as it turns out, was using a different name and a fictitious
date of birth and Social Security number. Consequently, Manor
Park discovered that the person it hired had five prior felonies
on his record only after he had raped an 84-year-old nursing
home resident suffering from Alzheimer’s. The victim’s family
sued, contending Manor Park was negligent in its hiring practices,
starting with its failure to detect that the janitor applied
for a job under a false identity. A jury agreed and awarded
$1.1 million in damages.
According to the attorney who represented the rape victim’s
family, Manor Park’s human resources department ran a criminal
background check on the janitor, but because he was using a
false Social Security number, his criminal record didn’t turn
up. The attorney argued that Manor Park’s HR department overlooked
many critical prehire steps and red flags that should have
triggered closer scrutiny of the applicant.
1. Carefully check a picture
ID and complete INS forms. Manor
Park didn’t obtain all of the
documentation required for
the INS I-9 form. Each time
company officials asked the
janitor for a driver’s license
or other picture ID, he said
he would bring it later, but
he never did.
2. Verify the accuracy of
Social Security numbers. The
Social Security Administration
operates a free verification
service that employers can
use to confirm a prospective
employee’s Social Security
number. You can check up to
five numbers at once by calling
(800) 772-6270 (make sure you
have the employee’s date of
birth, as well as your Employer
ID Number when you make the
call).
3. Ask about every gap in
employment history. Breaks
in the janitor’s employment
history should have raised
questions that could have led
the nursing home to discover
he had served several prison
terms.
4. Carefully check references. The
HR staff didn’t talk to any
of the janitor’s work references
or check his personal references.
5. Question educational
records. Had Manor Park
checked, it would have found
that the college the janitor
claimed to have attended had
no record of him under his
assumed name. Although he was
applying for a janitorial job,
he claimed to be a college
graduate, which should have
led to inquiries about his
educational background.
CONCLUSION: With record
low unemployment rates, employers
are feeling the pressure to
hire any candidate that appears
qualified right when they walk
through the door. However,
this case illustrates the importance
of taking the time to check
every aspect of an applicant’s
background. Even if you hire
a vendor to perform these critical
steps, you must verify that
they are taking all the steps
necessary for a proper background
check. |
| This article is a general
overview of the subject matter at the date that it was last
updated, and is not meant to provide professional opinions
regarding any specific case, matter, or set of facts, or
to substitute for the professional advice of Waag and Co.
Instead, please contact Susan S. Waag, Esq. for additional
information. |
