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Legal Aspects of Avoiding and Defending Negligent Hiring- Richard Garrity
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Legal Aspects of Avoiding and Defending Negligent Hiring- Richard Garrity

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Making the right and smart hire

Making the right and smart hire

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Legal Aspects of Avoiding and Defending Negligent Hiring- Richard Garrity Legal Aspects of Avoiding and Defending Negligent Hiring- Richard Garrity Presentation Transcript

  • Legal Aspects of Avoiding andLegal Aspects of Avoiding and Defending Negligent HiringDefending Negligent Hiring Presentation-Presentation- By, Richard GarrityBy, Richard Garrity
  • Legal Definitions/ Prior Case Law illustrated This presentation is proprietary information and can’t be copied or reproduced in any fashion without consent from the publisher owner.
  • Your building and your valued employees areYour building and your valued employees are the lifeline to a successful business entity.the lifeline to a successful business entity. So would you really hire just anybody?So would you really hire just anybody?
  • Negligent Hiring- Negligent RetentionNegligent Hiring- Negligent Retention “Weeding out the bad seeds”“Weeding out the bad seeds”
  • Additional Tips and Guidance onAdditional Tips and Guidance on dealing with problematic employeesdealing with problematic employees
  • If you can foresee it, you can prevent it! ~Some of the perils we face in the business world~
  • Overview of Presentation: Negligence Negligent Hiring Negligent Retention Documentation  Illegal Interview Questions Managing problematic employees MA. CORI Procedures
  • Legal Definitions: Vicarious Liability- is an employer's legal responsibility for discrimination, harassment, and other forms of unacceptable actions which occurs in the workplace or in connection with a person's employment. The employer is legally responsible unless it can be shown that 'reasonable steps' have been made to reduce this liability.
  • Legal Definitions: Intentional Tort- An act done with purpose, with knowledge, with a reckless disregard of result or with the gross disregard of the safety of others…Refers to deliberate acts which cause injury. Respondeat- The person against whom an appeal is taken.
  • Legal Definitions: At-will Employment- is a doctrine of American law that defines an employment relationship in which either party can break the relationship with no liability, provided there was no express contract for a definite term governing the employment relationship. Any hiring is presumed to be "at will"; that is, the employer is free to discharge individuals "for good cause, or bad cause, or no cause at all," and the employee is equally free to quit, strike, or otherwise cease work. However, the standard 2 week notice is always a prudent choice when leaving a job.
  • Legal Definitions (2): At-will Employment- Several exceptions to the doctrine exist, especially if unlawful discrimination is involved regarding the termination of an employee. "At-will employment" also does not by itself make terminated employees ineligible for unemployment claims and compensation if they are terminated without cause. Union employees can be discharged as At-Will personnel as well. However, abiding by current or standard disciplinary guidelines set forth by union-client doctrine should always be adhered to absent very serious employee misconduct.
  • Negligence: Negligence: is either the failure to do something that an ordinarily prudent person would do under given circumstances or the doing of something that an ordinarily prudent person would not do under those circumstances.
  • Legal Definitions: Negligent Hiring: The failure to use reasonable care in the employee selection process, resulting in harm caused to others. Employers have a legal duty not to hire people who could pose a threat of harm to others, which can include everything from slight to fatal bodily injury, theft, arson, or property damage.
  • Legal Definitions: The core definition of “reasonable care” depends on the degree of the risk of harm to other employees and people. The greater the risk, the higher the standard of care required.
  • Negligent Hiring:
  • Negligent Hiring: Duty Defined: An employer has duty to use “reasonable care” to select employees and contractors: who are safe and competent Have proven previous experience
  • Negligent Hiring: who do not have "violent propensities", e.g., prior criminal record whose background investigation checks out and or, is acceptable.
  • Negligent Hiring: As a result of negligent hiring, a company can be sued if an employee injures or harms another employee, especially if the company could have foreseen a problem but did not do a thorough check of the new employee before hiring. According to a 2005 report by Public Personnel Management, employers have lost more than 79 percent of negligent hiring cases.
  • Negligent Hiring: In a 2008 report released by the U.S. Bureau of Labor Statistics, 13 percent of the 5,840 workplace fatalities that happened in 2006 were the result of assaults and violent acts. And a recent article released by Human Resources Management noted the average settlement of a negligent hiring lawsuit is nearly $1 million. In the event that employment background checks were not conducted, the employers in those cases could be held liable for the incidents.
  • Negligent Hiring: While many negligent hiring claims involve drastic but isolated incidents of employee violent conduct, the risk of being a defendant against such claims and the damaging consequences surrounding them far outweigh the time and cost of taking the steps to prevent them. As a general rule, a company's first line of defense is to eliminate high-risk applicants before making ­hiring decisions.
  • Employment Reference Checks: Have It In Writing: By Mail By Telephone. Document It! Document It! Document It! “If it isn’t in writing, it didn’t happen!”
  • Criminal Background Checks:
  • Criminal Background Checks: Submit an official state CORI Form All applications for CORI certification must be submitted through the Department of Criminal Justice Information Services On­line Certification Application (OCA) (effective September 2nd 2008) Maintain The Documents!
  • Random MA. CORI Info: Any individual may request a copy of his/her own CORI criminal report. It is unlawful to request or require a person to provide a copy of his or her own CORI except as authorized by the CHSB, pursuant to M.G.L. c. 6, § 172 However, all requests for CORI documentation should come from the employer, and not submitted by the applicant
  • Negligent Hiring: Independent Contractors Find Out If They Screen Their Employees Maintain Documentation On Their Screening Procedures Maintain Documentation on their Training programs Maintain Documentation on their Safety Awareness
  • Negligent Hiring Lawsuit #1 FACTS: Security Guard Sets Fire To Client’s Premises. (Hero Syndrome) $2.3 Million in Property Loss. No Injuries. Security Guard Pleads Guilty to Arson. No Warnings. 2nd Day On The Job!!
  • Civil Lawsuit: Allegations against company: Intentional Tort – Respondeat Superior (Vicarious Liability) Requires Employee Acting Within Course & Scope of Employment. Negligent Hiring Negligent Retention
  • The Employment Application:
  • Employee’s Job Application:
  • Job Application-2
  • Job Application-3
  • Job Application-4
  • Job Application-5 ~Reference Checks~
  • Job Application-6 ~Personnel File Checklist~
  • Job Application-7 ~ The completed BOP sheet~
  • Job Application-8 Work Reference Verification
  • The Result: No Liability For Company! (Summary Judgment Granted)
  • Museum Theft:
  • Negligent Hiring Lawsuit #2 MUSEUM THEFT Security Guard at Automotive Museum Allows “Friends” Inside During Night Shift. $180,000 Of Audio Equipment Discovered Stolen from cars, as well as a miniature car. Security Officer Just Started. Contract Between Museum and Guard Company Requires Warrant Check, On All Guards.
  • Negligent Hiring Lawsuit #2 MUSEUM THEFT • LAPD “Question” Security Officer. (He denies) • Says “Friends” were his cousins. . doesn’t know where they live or how to get a hold of them. • Security Guard Fails Polygraph. • Security Guard Disappears. • Museum wants its money. • No Warning about Guard. 2nd Day at Job.
  • The Job Application:
  • The Job Application- 2
  • The Job Application-3
  • The Job Application-4
  • The Job Application-5
  • Employment Reference Check: NONE WERE DONE. Personal Reference Checks: NONE!!
  • Criminal Background Check: Outside Company utilized (Good) “No Records” = (so they were told) Wrong Spelling Terrol vs. Terrell No Documentation (Bad) “We Wouldn’t Let Him Work If We Didn’t Do One!”
  • Criminal Background Check: Los Angeles Police Department LAPD Records: Prior Conviction for Grand Theft. On Probation. The correct spelling of name-“Terrell” not “Terrol”
  • Company’s Remedy: Sue The Background Check Company for Indemnity? Problem: NO RECORD OF BACKGROUND CHECK REQUEST. NO DOCUMENTATION.
  • Other liability examples:
  • Employer Negligence: A furniture company was found liable for $2.5 million for negligent hiring and retention of a deliveryman who savagely attacked a woman customer in her home. (Tallahassee Furniture Co., Inc. v. Harrison)
  • Employer Negligence: A nursing home was found liable for $235,000 for the negligent hiring of an unlicensed nurse with numerous prior criminal convictions who assaulted an 80-year-old visitor. (Deerings West Nursing Center v. Scott)
  • Employer Negligence: A vacuum cleaner manufacturer was found liable for $45,000 because one of its distributors hired a door-to-door salesperson with a criminal record who raped a female customer in her home. The manufacturer should have required its distributors to conduct pre-hiring screening of door-to-door salespersons to prevent hiring of persons with criminal histories. (McLean v. Kirby Co.)
  • Proper documentation means all the difference during a lawsuit and or unemployment hearings.
  • Remember. . . “If it isn’t in writing, it didn’t happen.” Document It! Document It! Document It!
  • Was this truly the right thing to do? Was it professional?
  • The Taylor Grey Meyer story… Taylor Meyer, a woman who was rejected by the San Diego Padres baseball team over 30 times, snapped back at them when she received an email from them inviting her to pay 495 dollars to attend a “Combine”, or glorified hiring fair, where they told her she would meet employers and have a chance at one of 50 jobs they were looking to fill.
  • The Taylor Grey Meyer story… The 31-year-old Southern California resident with a master’s degree in sports management had been trying to get a job since December when she got a letter from the prospective employer on the job fair. She sent off her email--which also reflected on how often she'd been told she wasn't a good fit for jobs of all kinds with the Padres, even selling tickets, contrasted with her years of professional and academic experience--thinking that would be the end of it.
  • The Taylor Grey Meyer story… After careful review I must decline. I realize I may be burning a bridge here, but in the spirit of reciprocity, I would like to extend you a counter-offer to suck my (explicative). Clearly, I don't have one of these, so my offer makes about as much sense as yours. But for the price you're charging to attend the event, I'm sure I would have no problem borrowing one.
  • The Taylor Grey Meyer story… Except the email went viral. And it's been largely to Meyer's benefit. Not only has she received national media attention and congratulatory emails from all over the world for being “the voice of the unemployed educated middle class,” she’s been offered a slew of job opportunities and even a few marriage proposals.
  • So was Talor Meyer right or wrong in this situation?
  • The Interview & Questions:
  • Illegal Interview Questions: Tips and guidance on asking the “right” questions” and avoiding the “wrong ones”
  • Illegal Interview Questions: Various federal, state, and local laws regulate the questions a prospective employer can ask you. An employer’s questions- on the job application, in the interview, or during the testing process- must be related to the job for which you are applying. For the employer, the focus must be: “What do I need to know to decide whether or not this person can perform the functions of this job?”
  • Illegal Interview Questions: Disabilities and Physical Skills Employers are not allowed to ask you about any disabilities or test your physical skill level, other than in a very specific context. If your disability logically interferes with a capacity to perform the job, then they may legally inquire. If job performance would not be hindered, then it’s unfair and illegal topic of discussion.
  • Illegal Interview Questions: Personal History You are protected from revealing certain private, personal facts about your life. Questions about age, gender, financial status, and criminal history are generally prohibited- with certain exceptions. This especially in respect to public safety and child supervision positions applied for.
  • Illegal Interview Questions: Personal History Managers, Supervisors, and HR personnel should be aware of these guidelines. Your birth date, proving that you are 18 years of age or older, maybe requested if they decide to hire you for a position.
  • Illegal Interview Questions: Race, Creed, or Color In general, you should never ask or confront an applicant with questions about his/her ethnic or spiritual heritage during the interview phase. In the past, this was demonstrated to be the predominant source of prejudicial hiring practices. Gender based discrimination now seems to be more pervasive. But institutional racism really does still exist in some places. Offhand queries may conceal a hidden agenda to keep certain candidates out of the organization. This should never be practiced, in any shape or form.
  • Illegal Interview Questions: Family & Relationship Issues Most interviewers will shy away from direct questions about an applicant’s sexual orientation, marital or parental status, which they should. As managers and leaders, any type of inquiry concerning the status of an applicant’s personal relationship issues is prohibited. That info is confidential and proprietary on behalf of the candidate, unless they themselves should volunteer any information of that nature during the interview process. Which of course, would still remain confidential.
  • Illegal Interview Questions: Prohibited Questions- Examples  How old are you?  When was the last time you thrown in jail?  Are you really a woman?  Do you rent or own your home?  Have you ever declared bankruptcy? How many times have you been married?  We were just wondering: Are you Gay? Do you have dependable child care in place?
  • NEGLIGENT RETENTION:
  • Negligent Retention: When Is Enough, Enough? At-Will Employment? Major Policy Violation? Dangerous Propensities? Company At Risk If Retained?
  • The Westec Security Incident
  • Negligent Retention: Maria D. VS. Westec Corp. Facts: On September 4th , 1997, Swedish citizen Maria D. alleged that she was pulled over on the PCH by a Westec security patrol officer pretending to be a CHP police officer.  He conducted Field Sobriety Tests. Arrested (detained) her. Raped her at undisclosed location.
  • Negligent Retention: Maria D. VS. Westec Corp. 1. Female- Maria D. called Westec regarding improper social contact and the alleged rape allegation. (Investigation: disciplined for improper social contact. 3 mos. probation.) 2. Attendance: absent from work. (Home sick, no phone. No discipline.)
  • Discipline Record: 3. Found asleep in the patrol vehicle. Remedy: 2 day suspension. 4. Found asleep in the patrol vehicle. Remedy : three day suspension – “final warning.” 5. Attendance: Employee no show at firing range for required basic qualifications. 1 day suspension.
  • Discipline Record 6. Unauthorized pull-over and flashing lights at motorist in January 1997. 1 day suspension, reassigned to smaller area for policy violations. 7. Attendance: Late for roll call. Verbal counseling. 8. Attendance: no call / no show 2 day suspension, probation
  • Negligent Retention: The Judicial Verdict Jury/ Appeals Ct. Found No Negligence! Did not happen in a “vacuum”. (Over 15 month employment period.) The alleged rape was not within the scope of the security guard's employment. Human factors and due consideration. Company acted reasonably.
  • Negligent Retention: Heiner V. K-Mart Corp- March 11, 1995 Customer attacked by store security officer with a “gang member” appearance Security official did not identify himself The attack left the customer, George Heiner, unable to resume his dentistry career The incident stemmed from initial questioning of customer by the S/O
  • Negligent Retention: Initial hiring findings and evidence of: No Loss Control Mgr. to supervise employee or his appearance Negligent hiring and training  Negligent retention and supervision Vicarious liability for battery as well were shown as factors that led to assault Employee’s (Renehan) training “fell through the cracks”
  • Initial hiring findings and evidence of: Customer Service Supv. told K-Mart Mgt. that Renehan was a "time bomb ready to go off," and "a lawsuit ready to happen." Evidence showed that Kmart never disciplined Renehan for any of his aggressive confrontations with customers. Indeed, one month after Renehan attacked George Heiner, Kmart promoted him to loss control manager.
  • Legal Judgment:
  • Negligent Retention: The Remedy On January 23rd , 1998, the chain discount store was held liable for 3.8 million dollars in damages to the injured customer. ( 100 CAL Reporter 2nd 854- CAL Appeal 2000)
  • Problematic Behaviors:
  • Problematic Behaviors: Despite all our best efforts at “managing", we have very little control over other people’s actions, including the people that work with or for us. We can inspire, motivate, guide or threaten them, but the choice to act in a certain way is always up to the individual.
  • Problematic Behaviors (2): Today’s workplaces are complex environments – it is a rare occasion when all employees get on together and work enthusiastically and constructively to achieve the goals of the business. Problem behavior on the part of employees can erupt for a variety of reasons.
  • Recognize that problem behavior usually has a history: It usually develops over time and seldom from a single incident. As a manager, it is your responsibility to be alert to the early warning signs and deal with the underlying causes before the situation reaches a crisis.
  • Ask yourself: "Am I partly or wholly responsible for this behavior?" You would be surprised how frequently it is the manager who has created, or at least contributed to problems of employee behavior. Having an abrasive style, being unwilling to listen, and being inattentive to the nuances of employee behavior are all factors that contribute to the manager's need to thoroughly examine what is going on
  • Don't focus only on the overt behavior: When confronted by an angry or upset employee, it's easy to attack the person and target their behavior rather than examine the factors that underlie the behavior. Often, this takes patience, careful probing, and a willingness to forgo judgment until you really understand the situation.
  • Clarify before your confront: Chances are, when an issue first surfaces, you will be given only a fragmentary and partial picture of the problem. You may have to dig deep to surface important facts, and talk to others who may be involved. One safe assumption is that each person will tend to present the case from his or her viewpoint, which may or may not be the way it really is. Discretion and careful fact-finding are often required to get a true picture.
  • Plan your strategy:
  • Plan your strategy: Start by defining, for yourself, what changes you would like to see take place, then, follow this sequence: Meet with the person and let them know that there is a problem or concern.
  • Plan your strategy: State the problem as you understand it and explain why it is important that it be resolved. Gain agreement that you've defined the problem correctly, and that the employee understands that it must be solved
  • Personnel Management:
  • Personnel Management: Tips and advice in dealing with problematic and potentially problematic employees
  • Managing difficult employees: Never be afraid to mange, counsel, discipline or confront difficult or problematic employees. Although professional and prudent conduct is always expected, one must be vigilant and face all HR related problems with confidence and tough unwavering resolve.
  • 5 Tips to deal with problematic employees:
  • 1. Don't ignore the problem. Assuming that the employee provides value to the company and possesses redeeming qualities, there are ways to deal with difficult employees. Most often, managers will simply ignore problematic staffers. Managers who live by this rule hope the problem will just go away; that these people will somehow turn themselves around or stop being troublesome. Ignoring the situation is the wrong solution to what could likely become a progressive problem.
  • 2. Intervene as soon as possible. It is important to take action as soon as the negative behavior pattern becomes evident--when left untouched, this problem will only escalate. Occasionally, the difficult employee has no idea that his behavior is a problem or that others react negatively to his actions. This is because most people tend to put up with the annoying behavior and "go along to get along." At the same time, some employees just consider it a "job frustration." Just like some managers, employees want to be liked by colleagues and subordinates and are therefore reluctant to speak up when a problem arises.
  • Ultimately, it is the manager's responsibility to take the appropriate action to correct the problem. Whether the concern exists due to the employee's lack of knowledge of the issue, lack of feedback or projecting the difficulty onto someone else, the manager has the responsibility of addressing and turning around the predicament. The manager needs to gather information from employees to discern the extent of the problem and personally observe the employee interacting with customers or vendors.
  • 3. Research the problem personally. Armed with accurate data and examples, the manager needs to then take this person into a conference room or office--away from others--and calmly address the issue. To begin, the manager needs to ask the employee if he is aware of any ongoing issues to determine if the difficult person is aware of the problems.
  • 3. Research the problem personally. If the employee is "unaware," the manager needs to describe the unacceptable behavior. The employee might interrupt to disagree or deny the existence of any issues. Nevertheless, the manager needs to continue by giving clear examples of the unwanted behavior. The manager also needs to allow the employee to respond to the allegations
  • Once the employee begins to understand that these negative behaviors are real and experienced by others in the organization, the manager or someone from human resources should begin to coach the difficult employee in displaying more acceptable and appropriate behaviors. The employee needs time and practice in "trying on" new, more suitable behaviors. HR and/or the manager need to provide specific feedback to this employee on the success or failure of his efforts in minimizing the negative actions and implementing ones that are more positive. 4. Help the problematic employee to get back on track.
  • If the employee continues to deny his inappropriate behavior and refuses to try to improve the situation, the manager needs to place this person on the fast track towards termination. Often this involves recording a series of well-documented verbal and then written feedback about the behavior. Strictly following company protocol, there should be a period for the employee to address the questionable behavior. If this trial period does not result in improved behavior, then the employee needs to be terminated. 5. If all else fails, termination may be necessary.
  • Managing difficult employees: Sometimes, this is the only option.
  • Managing difficult employees: Never feed problem employees to the lions because of inability to address the root causes
  • Plan a contingency. An “out”.
  • Managing difficult employees: A prime example of how not to deal with problematic staff & personnel
  • Managing difficult employees: A diplomatic professional approach is the way to manage difficult staff personnel
  • ~Never be afraid to take the plunge; “Manage and Lead”
  • LESSONS LEARNED TODAY: “DOCUMENT IT! DOCUMENT IT! DOCUMENT IT!” “IF IT ISN’T IN WRITING, IT DIDN’T HAPPEN.”
  • Reach high for what you aspire
  • “I never dreamed about the road to success. I worked for it everyday.” Author unknown.
  • ~Thank you for attending today’s presentation