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Hiring Liability


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Importance of using employment screening/background checks when hiring

Published in: Business, Economy & Finance
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Hiring Liability

  1. 1. Avoiding Legal Liability For Negligent Hiring : What legal problems can be avoided by conducting background checks on prospective employees? : Conducting background checks to ensure that a business hires trust- worthy, dependable and safe employees makes business sense, but it also makes legal sense. Employees can create legal liability for a business in sev- eral ways. Below is a description of two primary types of liability: “respondeat superior” liability and liability for negligent hiring--and how background checks help reduce the risk of legal liability. Liability for Harm to Others - Respondeat Superior A business may be held liable an employee's careless or reckless acts that harm others, such as customers, coworkers, or members of the general public. In fact, lawsuits filed against businesses for harm caused by employ- ees are among the most common civil lawsuits filed in the United States. Employers are not liable for every act of an em- ployee. For an employer to be liable for injury caused by a negligent employee, the employee must be acting “within the course and scope of their employment.” Attorneys refer to this principle of liability with the Latin phrase “respondeat superior.” % & ' For example, a pizzeria is liable when its reckless '( delivery driver causes an accident while delivering pizza. A !quot;! ) # contractor may be liable if a worker with insufficient experi- * ence negligently operates construction equipment. A hospi- tal is negligent if a staff member administers the wrong &! &, + , medicine to a patient. A financial advisor may be liable for a '( # bookkeeper who embezzles funds. -. $ '( % A background check may reveal a history of reckless !! driving. It may reveal misrepresentations regarding educa- ' tion, training and experience. It may show a history of civil lawsuits demon- / / strating a lack of trustworthiness. It may reveal a problematic employment
  2. 2. history. Investing in pre-employment background checks can therefore pay divi- dends by minimizing the risk that unqualified employees create legal liability for the company. Negligent Hiring and Retention Every employer has a legal duty to use care in selecting and retaining only competent and safe employees. If an employer quot;breachesquot; this duty by care- lessly hiring an unsuitable employee, the employer may be held liable for harm caused by the employee. This is true even if the employee acts outside the quot;course and scope of employment.quot; 2 Example: A cable company that sends technicians to work unsupervised in customers' homes hires a new technician without screening his background. A few weeks after hire, the technician returns to the home of a female customer 3 & after work and violently assaults her. Is the company liable? Under the doctrine of respondeat superior, one could argue no, because the violent attack was outside the technician's scope of work. However, if the 4 technician had a history of violent crime, the cable company could be held liable 5 for negligently hiring him and putting him in contact with customers. Had it acted with the appropriate level of care by completing the background check, it would have known not to hire the technician. Even where a rogue employee makes it through the screening process, the employer's evidence of a background check is a strong defense to the negligent hire claim. . ' 02 + '( & For example, assume the same cable company conducted a background check before hiring a techni- 3 cian, and the background was clean, but the technician 0, ,' ( &, nevertheless assaulted the female customer. Perhaps it 6 could be shown that the technician had a violent his- $ ) tory, but the state criminal records were misfiled and 7 8 9 therefore missed by a standard background check. The 0! company could still defend itself by proving that it met its duty of care by conducting check. After all, the duty of care is satisfied by taking reasonable precautions. Although it hired a violent criminal, the company cannot be faulted, because it took prudent steps to discharge its duty of care. ' Hiring the right employees--ones who are less likely to engage in care- less, reckless or intentional misconduct--is therefore a crucial means to limit the # 1 risk of lawsuits.
  3. 3. Negligent Hiring Cases : Can I automatically disqual- ify any job applicant who has a % ' quot;! criminal background? ' ( ' . 7 )&9 : : No. Both California and federal law provide certain protec- % ' 3 tions for applicants with a criminal ; +! ' history. In all instances, employers < )8 1 are entitled to ask about prior fel- ony convictions, provided that a % ' quot; !, , &, conviction will not necessarily dis- '! 0 qualify the applicant from employ- &' =, ment. A blanket policy against < 4 $ ) hiring individuals with conviction records may violate federal anti- % quot;! ( & discrimination laws, according to. 3 . the Equal Employment Opportu- ' ( nity Commission (EEOC). The # : *) EEOC has the responsibility of enforcing, among other laws, Title % VII of the Civil Rights Act of ' 1964, as amended (Title VII), 42 ' ' , U.S.C. § 2000e et seq., which pro- & hibits discrimination against appli- / / >9 & cants and employees on the basis of race, color, sex, religion or na- %! ' ' tional origin. 3' ; Although Title VII does ' ( not, on its face, prohibit discrimi- 3> & ' nation on the basis of conviction ' records, the EEOC and courts have ( ( concluded that a policy or practice 1 :7 ? &9 of excluding individuals from em- ployment on the basis of their con- % ' viction records may have an ad- 2 &, !, , verse impact on certain minority ' &' groups in light of statistics show- ; ing that they are convicted at a rate @ A disproportionate to their represen- ' (Continued on page 4) B 1 C )
  4. 4. (Continued from page 3) tion. Also prohibited is an consideration of tation in the population. If there is such an information concerning a referral to, and impact, the policy or practice can be main- participation in, any pretrial or posttrial di- tained only if the employer can show a busi- version program, as well as any conviction ness need. for which the record has been judicially or- Whether there is a business need for dered sealed, expunged, or statutorily eradi- excluding individuals with conviction re- cated (e.g., sealed juvenile offense records cords from particular jobs depends upon: and expunged misdemeanor convictions). • the nature and gravity of the offense or Labor Code 432.8 prohibits consideration of offenses; certain misdemeanor marijuana convictions. • the time that has passed since the con- There is one exception to the prohi- viction and/or completion of the sen- bition against asking about arrests not re- tence; and sulting in a conviction: an employer may • the nature of the job held or sought. ask about an arrest for which the applicant is out on bail or on his or her own recogni- For example, a conviction 20 years ago for a non-violent felony by a construc- zance pending trial. tion worker could be overlooked; whereas a Conclusion recent violent crime by a children’s day- Avoiding liability for negligent hir- care worker could probably disqualify the ing requires diligence in the form of back- applicant. ground checks and careful observation of California law offers additional pro- applicant’s legal rights. Retaining a reliable tections. Labor Code section 432.7 prohibits and qualified provider of background employers from inquiring about arrests or screening is a basic but crucial first step. detentions that did not result in a convic- Allied Information Resource, Inc. thanks attorney Christopher W. Olmsted for preparing this !quot;# $ $ article. You may contact him at Barker Olmsted & % &&' Barnier with any questions regarding labor and ()&quot;( &quot;! % employment issues. ()&quot;( &quot;! * Sign up for regular Legal Updates +++ containing articles on employment law by visiting ! # ! &' & quot; $% % ( ) * + !quot; # $% &