Avoid Negligent Hiring With A Well-Defined Hiring Process

By Koleen Singerline

Baker City, Oregon -- A postal employee accused of killing a co-worker behind the city post office first ran over the woman, then shot her several times after he tried to find his boss but couldn't.

March 09, 2010 -- An Ohio State University custodian , who had been told he was being fired, killed a co-worker and wounded another before killing himself.

Portage, Indiana -- After a job review , police say a man fired one shot at the front door and another inside the office as his co-workers fled.

These are all real life examples of possible consequences of negligent hiring.

Negligent hiring is the hiring of a person that possesses some attribute of character or prior conduct that could lead to an undue risk or harm to others while carrying out employment responsibilities. Negligent hiring results from the failure of using reasonable care in the employment selection process. Reasonable care is dependent on the type of position being filled and the degree of harm to others that could result from its the failure.

While the details vary from state to state, a claim for negligent hiring generally may be stated under these circumstances:

1. The employer knew or should have known that their employee was unfit for his/her job: creating a danger to a co-worker, customer or other third person;

2. The unfitness was known or should have been know to the employer at the time of hiring;

3. The employee injured a co-worker or third party; and

4. The employee’s particular unfitness caused the claimed injury.

The costs of negligent hiring can be very high. From 1992 to 2001, the average cost to settle a negligent hiring lawsuit was roughly one million dollars . The highest settlement in the United States for a negligent hiring case was $26.5 million.

In the case of the $26.5 million settlement , a home healthcare worker entered a client's home, robbed, and brutally murdered both the client and his grandmother. The Healthcare organization had failed to perform a background check before they hired him. Had they performed a check, they would have uncovered the six prior felony convictions that would have led them to reasonably assume that the man would be a risk to work with. A sensitive populations application and resume could have also been used to minimize the risk of being sued for negligent hiring.

Three steps can be taken to reduce liability and provide evidence that you have met the "reasonable care" requirement in hiring. These steps include:

1. Have a clear job description that defines the job and clearly states the goals, objectives, and responsibilties of the job.  Decide if you will require prior experience, as well as any physical or educational requirements.

2. Check references. All former employers and personal references noted by the applicant should be contacted.

3. Test applicants. Tests related to the position being filled are used to distinguish between qualified and unqualified individuals. If the position requires handling confidential financial information, you may also want to do a credit check.

In addition to these three steps, it is very important to perform a background investigation before hiring an employee.  It is important to be consistent with your hiring practices and to document the steps you take with an applicant or personnel file.