Minimizing exposure to Negligent Hiring actions through inexpensive background checks

The cause of action based on negligent hiring is more expansive than liability predicated upon a theory of respondeat superior in that it covers negligent acts committed by the employer, not derived from an employee's negligent or intentional acts and, thus, not necessarily within the scope of employment. This theory is derived from the common law fellow servant doctrine where the master is not liable for injuries caused by a fellow servant so long as the employer exercised care in the selection of its servants. It was initially intended to protect fellow employees from harming one another, this theory has been expanded to protect members of the public who come in contact with employees. The tort is based on the principle that a person conducting an activity through employees is liable for harm resulting from negligent conduct in the employment of improper persons or instrumentalities in the work involving risk of harm to others .

The doctrine of negligent hiring is a broad doctrine that extends liability to employers for the injurious conduct of its employees even when the injurious acts are committed outside the scope of employment Under this theory a plaintiff must show the following:

(1) the employee was unfit for hiring (2) the employer knew or should have known that the employee was unfit; (3) the employer could foresee that the employee, through his employment, would come into contact with the plaintiff under circumstances creating a risk of danger to the plaintiff; (4) the plaintiff was injured; and (5) the employer's negligence was the proximate cause of the injury.

In addition, certain defenses available under the doctrine of respondeat superior, such as guest statutes or assumption of risk, may not be applicable in a negligent hiring action.

The related cause of action for negligent retention and supervision follow directly from that of negligent hiring. The analysis differs only in that once a potentially dangerous individual has worked for an employer for some amount of time, the employer may be held liable if it knew or should have known of the employee's violent propensities but nevertheless retained the employee in a position in which he could harm his co-workers or members of the public with whom he came in contact. If an employer has actual or constructive knowledge of the risk, the employer has a duty to protect those individuals coming in contact with the dangerous employee by either disciplining or terminating the individual.

Florida has enacted a statue which covers negligent hiring cases - Section768.096 which states:

(1) In a civil action for the death of, or injury or damage to, a third person caused by the intentional tort of an employee, such employee's employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include:

(a) Obtaining a criminal background investigation on the prospective employee under subsection (2);

(b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;

(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;

(d) Obtaining, with written authorization from the prospective employee, a check of the driver's license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or

(e) Interviewing the prospective employee.

In Abbot v Payne (457 So.2d 1156), a case in which a woman was assaulted by a pest control company employee entrusted with the key to her home, the court stated, "There is no question that an employer can be held liable in tort for negligent hiring . . . If an employer wishes to give an employee the indicia of authority to enter into the living quarters of others, it has the responsibility of first making some inquiry with respect to whether it is safe to do so."

Since October 9, 1998, when the Volunteers for Children Act, was signed into law by President Clinton as Public Law 105-251 and amended the National Child Protection Act of 1993, if a volunteer or employee of an organization sexually molests a child in his care and if it can be shown that this volunteer or employee had been previously convicted somewhere in the United States of a relevant crime, the organization may be held liable under the legal theory of negligent hiring

While there are no fool proof methods to guarantee against hiring an unfit or dangerous person, taking a common sense approach and considering the relevant case law and statutes, it seems employers can demonstrate reasonable care and reduce their exposure to negligent hiring claims by simply utilizing the services of an employment screening company.