Running a background
check - preventing negligent hiring
Brian W. Gill
The scenario: an applicant for a position
as four-color press operator looks great "on paper"--10 years of experience,
worked up through the pressroom to a current position as first press
operator for a high-quality print shop. Unfortunately, the shop experienced
cutbacks and the applicant got the short end of the stick because another
employee had more seniority.
An ideal find, right? Don't be so sure. Although the applicant sounds
wonderful, the company still let the worker go.
When you contact the former employer for a reference, the firm's policy is
to give only your applicant's job title, dates of employment and pay scale.
How do you find more information on the applicant? Should you care about
such things as negligent hiring? Yes, because the potential liability far
outweighs the cost in time and effort of doing a little checking before
offering employment.
Negligent hiring, a hot topic in the courts, occurs when employers are held
liable by someone who is injured by an employee who has committed a
violation on the job. The injured party contends the employer's negligence
put the employee in a dangerous position where the worker could hurt
someone.
In numerous cases, employers have been sued because employees threatened,
raped, assaulted or killed workers or customers. Courts are ruling that
employers have a duty to exercise reasonable care in hiring individuals who
could, as a result of their employment, pose a threat to the public.
Negligent hiring is based on employers' failure to uncover job applicants'
incompetence by checking references, criminal records or general background
information. Negligent retention can be a result of employers' failure to
discover employees' inadequacy for a particular position and employers'
subsequent failure to take corrective action, such as training,
re-assignment or discharge. The principal difference between negligent
hiring and negligent retention is based on when employers are charged with
learning of an employee's unfitness.
Hiring and security procedures, as well as background screening processes,
should be strictly controlled for individuals having access to the public
and potentially dangerous equipment. Since there is a risk of harm to the
public in these situations, employers are held to a higher standard of care
to investigate employees. Employers should be aware of danger signals that
may reveal employees are unstable or unfit to remain in a position. Signals
include stress, fatigue, mental illness, carelessness, aggressive or abusive
behavior and drug/alcohol use. To avoid negligent hiring claims, employers
should conduct reasonable investigations into prospective employees'
fitness.
As protection against claims, employers should understand the theory of
negligent hiring/retention, equal employment opportunity mandates and
privacy concerns. In addition, they should develop effective pre- and
post-employment policies.
The following guidelines will help executives develop complete background
checks on potential employees and reduce their risk of negligent
hiring/retention claims.
* Job applicants should be required to complete employment applications that
meet federal, state and local employment laws. Applicants should sign
applications, stating all information they provide is accurate and truthful.
Applications also should include authorization to obtain information from
former employers, educational institutions and other individuals listed on
forms. Authorization also should include indemnification of prior employers
and prospective employers for liability arising from such inquiries.
* Always obtain applicants' written agreement to check personal and
employment references. When contacting references, ask about honesty,
trustworthiness, reliability and character. Probe further for factual
examples if prior employers describe an employee as a "good worker."
* If prior employers are reluctant to release information regarding
applicants, record the refusal in writing. In the event of a lawsuit,
written reports establish that attempts were made to obtain references.
* All inquiries and information should be documented, including telephone
inquiries and interviews with professional and personal references as well
as prior employers.
* Try to get another contact. Ask, "Is there anyone else who has worked with
the applicant?"
* Use job interviews to resolve doubts about information on employment
applications.
* Keep responses confidential and assure all parties of confidentiality.
The four-color press operator mentioned above may prove to be the best
employee the company ever hired--or the worst. In today's legal climate,
reference checks have become a necessary burden on employers. However, they
also will help give you 100 percent confidence in your prospective employee.
BRIAN W. GILL Senior vice president of education and human relations,
Printing Industries of America, Alexandria, VA
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