paranoia increases by geometric progression with each new lawsuit. Federal district courts processed 59,284 civil cases in 1960. Lawsuits soared to 254,828 cases by 1986, a 200 percent increase. During the same period the American population increased by only 20 percent. The legal burden on school business managers is fast approaching gridlock. American public schools may be sued right out of existence. Go to school and get sued. Teach something in school and get sued. Teach nothing and get sued. Eat something and get sued. Go home and get sued by your own kids. Now hire the wrong person and get it for negligent hiring.

 

My purpose is to define negligent hiring as defined by the courts and the research. I will discuss the legal phenomenon of negligent hiring, what it is, how it has evolved, where it will probably go, and how to evade its litigious jaws.

 

The Problem

Employers are being sued for negligent hiring. They put a new employee on the payroll who is unfit for the job. The new employee injures another person who turns and sues the employer for negligent hiring for the following reasons:  

• The third party was injured by an employee acting under the auspices of employment.
• The new employee was unfit for the job. .
• The employer knew or should have known about the unfitness of the employee.
• The injury was a foreseeable consequence of the hiring.
• The employee was the approximate cause of the injury (Fallon v. Indian Trail School, 1986).

 

The above is the problem in a nutshell, but from this problem sprouts two more:

·         Previous employers resist divulging information about a previous employee to a new employer because many have been sued for defamation.

·         Past and prospective employers find themselves in an adversarial vice. Respectively, if they do they. get sued, if they don't they get sued.

 

Previous Investigations

Customarily, employers make pre-employment reference checks. It is generally believed that past performance accurately predicts future behavior. Consequently, prospective employers are very interested in obtaining background information prior to hiring a new employee. Ryan and Lasek (1991) discuss in detail the adversarial dilemma faced by previous and prospective employers when it comes to securing background information without securing a defamation lawsuit. EEO case law, privacy issues, the Americans with Disabilities Act, negligent hiring lawsuits and defamation lawsuits have built a new tight rope for the school business manager.

 

Negligent hiring is a newly emerging legal doctrine. Up until recently, the accepted doctrine has been respondeat superior. Under respondeat superior the employer becomes liable when an employee is acting within the scope of the job description and injures a third person. The criteria for defining respondeat superior are:

·         Whether the injurious act was a part of the job. .

·         Whether the act occurred while the employee was on duty. .

·          Whether the employee was motivated to serve the employer (Chesterman v Barmon, 1986).

 

In determining liability from negligent hiring, courts generally consider the following five points:

·         The injury was caused while the employee was under the auspices of employment. . The employee was shown to be unfit..

·         The employer knew about the unfitness.

·         The injury was a foreseeable consequence of hiring an unfit employee.

·         The hiring of the unfit employee was the proximate cause of the injury.

 

In Coath v. Jones (1980), a former employee raped a customer. The court ruled that because the employer had created a special relationship, whereby his customers admitted his employees into their homes, the employer was required to notify his customers that the employee was no longer employed. Individuals may be considered incompetent in negligent hiring cases due to lack of training or experience, a physical or mental illness, frequent intoxication, constant forgetfulness, habitual carelessness, continual inattentiveness, a propensity for horseplay, recklessness, or maliciousness. To be an indicant of unfitness, the behavior must be habitual.

 

The issue of foreseeability supports the need for employers to do extensive research on backgrounds of prospective employees. If it is reasonable to believe the employer should have discovered the potential risk of hiring a prospective employee, then the probability of legal liability increases.

 

In Ponticas v. K.M.S. Investments (1983) the employer was liable for failing to inquire appropriately into the background of an apartment manager who subsequently raped a tenant.

 

In Malorney v. B&L Motor Freight, Inc. (1986) one of their drivers sexually assaulted a hitchhiker. The court ruled the employer should have foreseen the unfitness of the driver by investigating his criminal record which listed previous sexual assaults. If a proper pre-employment investigation would have revealed an employee's unfitness, then the employer will be held accountable by the courts.

 

Miller and Fenton (1991) found negligent hiring cases to be one of the fastest growing areas of employment law. Some types of businesses are more susceptible to negligent hiring lawsuits: common carriers, landlords, patient care facilities, restaurants and bars. They owe a special duty to the business invitee with whom they do business. Public schools can easily fall into this category.

 

The tort doctrine of negligent hiring has added an additional burden to the recruitment process. Courts often award hundreds of thousands of dollars which are upheld on appeal. Case law holds that employers owe their employees a safe place to work. Also employers owe their customers safe employees. If the employer could have known before hiring a person that he was unfit for employment, the employer will be held accountable for inquiring into the background of a job applicant, including past employment and references. However, plaintiffs are asking courts to curb employer access to employee records under the right to privacy doctrine, a constitutional argument under the Fourth Amendment regarding illegal searches and seizure guarantees.

 

Obviously, employers are in a difficult position. They are accountable if:

·         A link can be found between an employee's action and third-party injury.

·          Information concerning the employee's unfitness was available before hiring or became available after hiring.

·         It can be established that the information could take the public out of harm's way.

 

Recommendations

Walker (1992) details the risks of hiring and firing. Many states recognize the theory of negligent hiring as a valid cause of action in suits by third parties who are injured by employees. These risks arise from: .

·         An employer's duty to protect against foreseeable injuries. .

·         Employer-employee relationships.

·         The employee's incompetence to perform the job.

·         The employer's knowledge of the employee's incompetence.

·         A causal connection between the negligent selection of the employee and the injury.

 

Employers may reduce the risk of negligent hiring by gathering as much information as possible concerning an employee. Too little information increases negligent hiring liabilities 'while too much information increases the probability of a defamation lawsuit.

 

Application forms should ask for information about criminal records. Such information should be prefaced with the notice that a conviction will not necessarily bar employment. ADA severely restricts an employer's right to use job applications as a means of inquiring into the applicant's medical history. Nonetheless, courts routinely require completion of a job application by applicants, a job interview, a check on past work references, a check on required certifications, and a check for past criminal convictions (Miller and Fenton, 1991).

 

Fenton (1990) wrote that many state statutes limit employer access to personal background information of a job applicant. However, state laws generally allow the use of criminal conviction information if there is a direct relationship between the crime and the job for which the person applied (Guillermo v. Brennan, 1988).

 

Effective and safe job performance includes increasing public safety when making employment decisions. EEO exceptions should be aggressively pursued when appropriate. Emphasize the pre-employment stage and adhere consistently to prudent pre-employment procedures.

 

A former employer may communicate the reason for termination without liability as long as it is without malice. Recruiting policy should designate one person to respond to reference requests and without exception all should be in writing. Institute and enforce a strict policy of limited disclosure. Statutory immunity is lost if the information is knowingly false or deliberately misleading and rendered with malicious purpose. Figure 1 lists seven steps for reducing the probability of a negligent hiring lawsuit.

 

The Defamation Don'ts

Don't inquire about race, sex and marital status. Don't inquire about physical or mental disabilities. Don't inquire about workers compensation histories. Don't inquire about off-duty use of alcohol or tobacco, or personal activities.  Some states say don’t inquire about psychological profiles (Anderson, 1993).

 

FIGURE 1

Ways to Avoid a Negligent Hiring Lawsuit (Fenton1990, Stevens 1990)

 

·         Require all job applicants to complete an employment application form that meets federal, state, and local employment laws.  Require the applicant to sign the form signifying all information is accurate and truthful. 

·         Obtain a written agreement to perform a complete background check. Always run a credit check.  Always check on the applicant’s conviction record.  Always remember the loophole in the liability insurance policy excludes coverage for convicted felons.

·         Remember a higher degree of care is required if potential harm to the customer is foreseeable.

·         Request and obtain copies of any professional licenses or degrees.  Always check academic credentials by calling the institution for verification.

·         Conduct a nondiscriminatory job interview using the application to confirm information supplied.  Always subject the applicant to an intensive personal interview focused on the person’s character.

·         Check the applicant’s employment references o confirm information supplied.  Always extend reference checks beyond the applicant’s most recent employer to his last two or three jobs.

·         All sources of information should be documented, including the results of job interviews.  Always determine whether the prospective employee has a business of his own.

 

 

Walker (1992) suggests reducing defamation lawsuits by limiting the kinds of information being released both to current employees and prospective employers. Enhance the doctrine of qualified privilege by carefully, objectively, and specifically documenting the reason for release in the service letter. Give an exit interview to employees leaving the organization. The interview may provide information for preparing for a defamation lawsuit. Also, this feedback may help eliminate potential problems in the work force. The common law doctrine of qualified privilege protects the employer if the information being shared is in the interest of the public's safety or the business interest of the employer. The information has to be shared in good faith. It must be limited to the inquiry. It must be give at the proper time and place (bar rooms and cocktail parties may ,not be proper places). It must-be given to proper persons not the public. It must be related to job requirements. It must be true (Sovereign, 1989).

 

Ryan and Lasek (1991) maintain that defamation liability hinges on four conditions: The statement must have been communicated to another person. The statement must be false.. There must be injury to reputation. The employer was not protected under qualified privilege. Figure 2 lists twelve steps for reducing negligent hiring and defamation lawsuits: In summation, school business managers can reduce the probabilities of incurring either a negligent hiring or a defamation lawsuit by doing their homework well, consulting frequently with their attorneys, and keeping up with the constantly changing legal battlefield.

 

FIGURE 2

Twelve Steps for Reducing

Negligent Hiring and Defamation Lawsuits (Sovereign, 1989)

 

1.  Information is released by only designated and trained employees.

2.  Requests for all information, except employment dates, should be in writing.

3.  Give out only information that is job related.

4.  Require employee’s written consent before releasing information.

5.  Only put the truth in an employee’s file.

6.  Only collect information from reliable sources.

7.  Don’t share performance information about a particular job.

8.  Don’t give background information for future reference.

9.  Release personnel files only to those who have a job-related purpose.

10.  Sanitize the personnel file before sharing it with the employee.

11.  If the employee disagrees with personnel file information, permit a written rebuttal, without your comment.

12.  Set up a policy that specifies what, to whom, by whom and how the information will be disclosed.

 

 

 

References

Anderson, B. E. (1993). Background checks: legality versus liability. H.R. Focus, 70(3), 4(2).

 

Arline v. School Board of Nassau County, 692 F. Supp. 1286 (M.D. Fla. 1988).

 

Chalk v. U.S. District Court, 840, F.2d 701 (9th Cir. 1988).

 

Chesterman v. Barmon, 1 IER Cases 1386 (1986).

 

Coath v. Jones, 419 A.2d 1249 (Pa. Super. 1980).

 

Conte, C. (1993, July 27). Labor Letter. The Wall Street Journal, p. AI.

 

Fallon v. Indian Trail School, 500 N.E.2d 600 (Ga. App. 1982).

 

Fenton, Jr., J. W. (April 1990). Recruitment: negligent hiring/ retention adds to human resources woes. Personnel Journal, 60(4), 62(7).

 

Guillermo v. Brennan, 3 IER Cases 915 (1988).

 

Kinard, J. & Renas, S. (Fall 1991). Negligent hiring: Are hospitals vulnerable? Public Personnel Management,

 

Malorney v. B&L Motor Freight, Inc., 496 N.E.2d 1086, 146 Ill. App. 3d 265 (1986).

 

Miller, G. D. & Fenton, Jr., J. W. (March 1991). Negligent hiring and criminal record information: A muddled area of employment law. Labor Law Journal, 42(3), 186-192.

Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983).

 

Ryan, A.M. & Lasek, M. (Summer 1991). Negligent hiring and defamation: Areas of liability related to pre-employment inquiries. Personnel Psycho12gy, 44(2), 203-230.

 

Sovereign, K. L. (1989). Personnel law. Englewood Cliffs: Prentice Hall.

 

Stevens, M. (September/October 1990). Negligent hiring can open the door to lawsuits. D&B Reports, 38(5), 50(2).

 

Walker, P.D. (October 1992). The risks of hiring and firing. Risk Management, 39(10), 53(5).

 

Dr. Burel Block is the program coordinator for educational administration and supervision for the graduate program at Albany State