In order to avoid negligent hiring or retention situations, consider a few basic best practices:
Ensure the due diligence is equivalent with the risk – Not all positions provide the same level of access to people, facilities, and systems. The depth of the background check should be commensurate with the risk. The likelihood that your CEO has the same physical access as the summer intern is unlikely. Treat the types of background checks you perform as relevant to the position and level of access as possible. Particular attention should be paid to those that will have access, and potentially unsupervised access, to sensitive populations like children, elderly and disabled.
Maintain consistency in your program and policies – If your policy states that you background check at a certain level and it is found that you didn’t perform a check at that level, then it may be used against you in a potential lawsuit.
Document everything – In a court of law, if your Human Resources or Security department have not documented parts of their research or background check then it is as if your research never occurred. Document all background checks, conversations with previous employers, etc. to ensure a complete view of any bad hire.
Perform periodic audits – Perform periodic audits of your background screening program and the HR/Security processes and policies. Ensure that they are consistent and applied across the board.
Perform background checks upon promotion – Think about background checks when a person receives a promotion or when access or risks are added to a position. Many times the initial position may not provide the level of access as the new position, yet the preliminary screen continues to be used.
Define your extended workforce screening policy – A clearly defined program regarding temps and contractors should be outlined, as companies have less control over the quality of hire at another organization. Ensure that a background check that meets your specifications is being performed on indirect employees prior to providing access to your facilities or systems.
Benchmark against others in your industry – To avoid litigation and to succeed in a case, companies must be able to show that they are doing as much, if not more, than their peers from a criminal history check perspective.
Confer with your legal department – Make certain that you check with your legal department about any controls and policies that you need to enforce to ensure your organization promotes the safest environment possible for your employees and clients.
With these best practices in place, you are one step closer to avoiding a, potentially very costly, million dollar mistake.
Employers must act reasonably when hiring, supervising and retaining workers. Negligent hiring occurs when an employer fails to verify that a prospective employee may present a danger to the organization. Negligent hiring claims can be brought by an individual when an employer fails to screen a worker adequately, and that worker subsequently harms someone else.
In making a negligent hiring claim, the harmed individual argues that the business knew or should have known their worker’s background history before hiring them. While states have defined the elements necessary to prove a negligent hiring claim, at their most basic, the harmed party must establish:
- The employer owed a “duty of care” to others when hiring the worker
- The employer breached that duty
- The breach was the cause of the injury or harm
- The injury or harm was reasonably foreseeable
- Damages resulted from the employer’s inaction.
The bottom line: If an employer is not diligent in assessing a worker’s background and that worker harms someone, that employer could be on the line for the worker’s actions. And employers are responsible for the ongoing supervision of their workers and ensuring that their retention does not indicate foreseeable harm to the organization’s workforce or its clients.