Pros And Cons Of Negligent Hiring
Negligent Hiring: An Ethical and Legal Overview
Introduction
The subject of negligent hiring has gained considerable attention in the past few years as companies recognize the ethical and legal issues associated with negligent hiring. Currently, all fifty states and the District of Columbia acknowledge some form of negligent hiring as a cause of action for liability although the law has been inconsistently applied among the federal and state courts in a number of cases. While the legal requirement of negligent hiring differs from state to state, it is generally accepted to be a “cause of action that holds employers civilly liable for the tortuous conduct of any employee.” Because of the increase prevalence of negligent hiring lawsuits, …show more content…
the legal and business community has responded by developing guidelines and suggestions for dealing with negligent hiring. This paper will identify the ethical and legal issues surrounding negligent hiring as well as possible guidelines for preventing negligent hiring lawsuits.
Unethical
The ethical arguments of negligent hiring are generally separated into two categories. First, there is the argument that a hiring manager has a duty to ensure the safety of everyone in a workplace- including employee, customers, and the public depending on the type of job. By enforcing negligent hiring, it incentivizes employers to carefully select, screen, review, and supervise employees so as to ensure a safe working environment rather than shirking the responsibility of selecting the most qualified person. And in fact, according to Miller and Fenton, negligent hiring cases or issues most often occur when an employer has hired an employee with an establish history of crime, violence, or unwarranted behavior. Simply put, although the employer had a reasonable expectation to research an applicant, they failed to perform even the most general research about the employee entering their workplace. For example, the Oklahoma a school district was sued for the negligent hiring of a teacher after the teacher sexually molested three boys. The teacher was convicted of sodomy in 1972, about 12 years before being hired at the school district. On the contrary, measures taken to prevent negligent hiring could be detrimental to the rehabilitation of ex-convicts. As quoted by Shepard, the “purposes of the American criminal justice system are to punish, incapacitate, and rehabilitate criminal offenders, and to deter those offenders and potential offenders.” It stands to reason that if those with a criminal history become even less attractive in the workforce, they would likely be unable to rehabilitate themselves to into normal society.
Due to negligent hiring laws, employers may be more likely to require background investigations for potential employees.
According to a 2009 survey from the Society for Human Resource Management, “73% of employers do criminal background checks for any job candidates, 19% for selected candidates, and 7% not at all.” While it is certainly reasonable for employers to conduct a criminal background investigation for jobs that work closely with the public or has duties that require a ‘no-criminal background’, the increasing prevalence of background investigations suggest that employers are using it merely as a tool to prevent negligent hiring lawsuits rather than as a tool for selecting the most qualified candidates. A potential employee’s interaction with the public does not necessarily mean it is reasonable, or even ethical, to warrant a criminal background check. Ethically, an employer should only conduct a criminal background check if there is a reasonable need to do according to the duties and the environment of the job …show more content…
position.
Legal
Despite the possibility of lowering the rates of rehabilitation among ex-convicts, the U.S. legal system has had a number of cases with regards to negligent hiring in recent years. While each state handles negligent hiring differently (some states have separate requirements for negligent retaining and supervising) , the general standard is similar to Ohio which requires five elements- “(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injury.”
For example, in the case of Deerings West Nursing Center v. Scott, it was alleged that nursing center was negligent in the hiring of a male nurse who assaulted an elderly woman visiting her brother. Given the nature of the job, the court did find that the nursing center had a duty to exercise reasonable care in the selections of its medical staff- especially in regards to any licensed personnel such as nurses and doctors. The nursing home should have required a presentment of the license and likely should have done a background check of the applicant (which would have discovered he was on probation).
Although the applicant admitted to falsely stating that he had a Texas LVN license (he was in unlicensed) and that he had no criminal record (the applicant had committed over 56 criminal offenses), the court ruled that it was well within the nursing home’s ability to verify the applicant’s information. The court went so far as to state that the failure to properly review the applicant was a “heedless and reckless disregard” of the rights of others and awarded over $235,000 in damages. An important part of the decision was the fact that the plaintiff’s injury could have been anticipated and was a direct result- and likely consequence- of the nursing home’s negligent hiring.
However, the legal elements of negligent hiring can develop a gray area when compared to other existing laws.
For example, “Title VII of the Civil Rights Act may prohibit the rejection of an applicant solely on the basis of an arrest record” and California “prohibits an employer from asking the applicant for any information regarding an arrest that did not result in a conviction.” While these statues do not directly contradict negligent hiring laws, they do severely limit the pre-hiring actions an employer can take to limit their risk of a negligent hiring claim. Conversely, a defendant could argue that they are not guilty of negligent hiring since they were only able to screen and hire potential employee in accordance of the law. Discrimination because of criminal history is among other historical forms discrimination- such as race, creed, color, sex, and national origin- and if an employer is limited under law from discriminating based on criminal background, then the employer can use this as part of a defense against a negligent hiring claim. Therefore, laws that protect an applicant actually help defend a company in any future negligent hiring claim as it proves that they screened and reviewed an applicant to the fullest extent allowed under the
law.
Preventing Against Negligent Hiring Perhaps the best defense towards a negligent hiring claim is to develop a policy that not only limits any potential future issues but also aids in the defense of any possible future claim. By ensuring that an employer took all necessary steps, the employer can reduce their exposure to negligent hiring liability but can also ensure fairness in the job market. Before applications are taken, the employer needs to decide what factors are necessary in the hiring process with regards to the nature of the job, the type of offense, and how long ago the conviction occurred.
First, an employer needs to research and discover any reasons for a gap in an applicant’s employment. A gap of employment should be a red flag for an employer that more research needs to be done. While not necessarily an omission of guilt or wrongdoing, a gap of employment can be a sign of a potential issue in the applicant’s history and warrants a closer look.
Second, employers should require reference checks and should adequately follow up with any previous employers. In addition, they should ask to speak with a manager or supervisor (if possible) rather than simply confirming ‘name, title, and rank’ with human resources.
Third, employer should require a criminal record check as long as it is necessary according to the nature of the job. In addition, there should be a statement on the application that states that a conviction for some crimes will not necessarily disqualify an applicant from the position. Since some crimes or convictions are not in direct contradiction with the nature of a job, it allows the potential applicant pool to still be fair and not single out those with a criminal record. Essentially, the “blanket approach” is not appropriate for selecting employees and employer should refrain from excluding anyone based purely because they have a criminal record or history. If the criminal action has no bearing on the nature of the job, then it should not be a reason for denying an applicant.
Finally, there should be a number of people involved in the hiring process in order to provide multiple perspectives and overall consensus if an applicant is qualified or not. Not only will this ensure better hiring decisions in general, but, it also helps protect against any future lawsuits because it makes the hiring process more in-depth. A hiring “team” is more likely to not only review all the documents in an applicants file, but, is also able to get a better sense of an applicant and whether additional background information needs to be done. Similarly, the hiring personnel should initial every document relating to the applicant to signify that they have read it and it was used in the hiring decision. This way, if a negligent claim is ever brought up, the company can better defend itself by explaining their hiring process and producing documents to show that they did in fact did their due diligence in regard to reviewing an applicant. Negligent hiring claims are still a growing a issue among the legal and ethical community and is continually being defined and revised. Ultimately, it can be prevented by following a laid out plan for hiring and reviewing an applicants and by thoroughly documenting the procedure. And while negligent hiring becomes more predominant, the question of negligent selection and negligent retention, similar issues, are also brought to light. While some states already include these issues within the umbrella of negligent hiring, other states consider it a separate issue with separate elements for basing a claim. Ultimately, the idea behind negligent hiring- and possibly selection and retention- is that employer has a due diligence to make reasonable steps in the hiring process to ensure that qualified applicants are brought into the workplace. While this may have ramifications for those with a criminal background, it is ultimately better for the public’s safety and the quality of service provided by company. Better-suited and qualified persons working a company or organization will improve the quality of everyone.
Introduction
The subject of negligent hiring has gained considerable attention in the past few years as companies recognize the ethical and legal issues associated with negligent hiring. Currently, all fifty states and the District of Columbia acknowledge some form of negligent hiring as a cause of action for liability although the law has been inconsistently applied among the federal and state courts in a number of cases. While the legal requirement of negligent hiring differs from state to state, it is generally accepted to be a “cause of action that holds employers civilly liable for the tortuous conduct of any employee.” Because of the increase prevalence of negligent hiring lawsuits, …show more content…
the legal and business community has responded by developing guidelines and suggestions for dealing with negligent hiring. This paper will identify the ethical and legal issues surrounding negligent hiring as well as possible guidelines for preventing negligent hiring lawsuits.
Unethical
The ethical arguments of negligent hiring are generally separated into two categories. First, there is the argument that a hiring manager has a duty to ensure the safety of everyone in a workplace- including employee, customers, and the public depending on the type of job. By enforcing negligent hiring, it incentivizes employers to carefully select, screen, review, and supervise employees so as to ensure a safe working environment rather than shirking the responsibility of selecting the most qualified person. And in fact, according to Miller and Fenton, negligent hiring cases or issues most often occur when an employer has hired an employee with an establish history of crime, violence, or unwarranted behavior. Simply put, although the employer had a reasonable expectation to research an applicant, they failed to perform even the most general research about the employee entering their workplace. For example, the Oklahoma a school district was sued for the negligent hiring of a teacher after the teacher sexually molested three boys. The teacher was convicted of sodomy in 1972, about 12 years before being hired at the school district. On the contrary, measures taken to prevent negligent hiring could be detrimental to the rehabilitation of ex-convicts. As quoted by Shepard, the “purposes of the American criminal justice system are to punish, incapacitate, and rehabilitate criminal offenders, and to deter those offenders and potential offenders.” It stands to reason that if those with a criminal history become even less attractive in the workforce, they would likely be unable to rehabilitate themselves to into normal society.
Due to negligent hiring laws, employers may be more likely to require background investigations for potential employees.
According to a 2009 survey from the Society for Human Resource Management, “73% of employers do criminal background checks for any job candidates, 19% for selected candidates, and 7% not at all.” While it is certainly reasonable for employers to conduct a criminal background investigation for jobs that work closely with the public or has duties that require a ‘no-criminal background’, the increasing prevalence of background investigations suggest that employers are using it merely as a tool to prevent negligent hiring lawsuits rather than as a tool for selecting the most qualified candidates. A potential employee’s interaction with the public does not necessarily mean it is reasonable, or even ethical, to warrant a criminal background check. Ethically, an employer should only conduct a criminal background check if there is a reasonable need to do according to the duties and the environment of the job …show more content…
position.
Legal
Despite the possibility of lowering the rates of rehabilitation among ex-convicts, the U.S. legal system has had a number of cases with regards to negligent hiring in recent years. While each state handles negligent hiring differently (some states have separate requirements for negligent retaining and supervising) , the general standard is similar to Ohio which requires five elements- “(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injury.”
For example, in the case of Deerings West Nursing Center v. Scott, it was alleged that nursing center was negligent in the hiring of a male nurse who assaulted an elderly woman visiting her brother. Given the nature of the job, the court did find that the nursing center had a duty to exercise reasonable care in the selections of its medical staff- especially in regards to any licensed personnel such as nurses and doctors. The nursing home should have required a presentment of the license and likely should have done a background check of the applicant (which would have discovered he was on probation).
Although the applicant admitted to falsely stating that he had a Texas LVN license (he was in unlicensed) and that he had no criminal record (the applicant had committed over 56 criminal offenses), the court ruled that it was well within the nursing home’s ability to verify the applicant’s information. The court went so far as to state that the failure to properly review the applicant was a “heedless and reckless disregard” of the rights of others and awarded over $235,000 in damages. An important part of the decision was the fact that the plaintiff’s injury could have been anticipated and was a direct result- and likely consequence- of the nursing home’s negligent hiring.
However, the legal elements of negligent hiring can develop a gray area when compared to other existing laws.
For example, “Title VII of the Civil Rights Act may prohibit the rejection of an applicant solely on the basis of an arrest record” and California “prohibits an employer from asking the applicant for any information regarding an arrest that did not result in a conviction.” While these statues do not directly contradict negligent hiring laws, they do severely limit the pre-hiring actions an employer can take to limit their risk of a negligent hiring claim. Conversely, a defendant could argue that they are not guilty of negligent hiring since they were only able to screen and hire potential employee in accordance of the law. Discrimination because of criminal history is among other historical forms discrimination- such as race, creed, color, sex, and national origin- and if an employer is limited under law from discriminating based on criminal background, then the employer can use this as part of a defense against a negligent hiring claim. Therefore, laws that protect an applicant actually help defend a company in any future negligent hiring claim as it proves that they screened and reviewed an applicant to the fullest extent allowed under the
law.
Preventing Against Negligent Hiring Perhaps the best defense towards a negligent hiring claim is to develop a policy that not only limits any potential future issues but also aids in the defense of any possible future claim. By ensuring that an employer took all necessary steps, the employer can reduce their exposure to negligent hiring liability but can also ensure fairness in the job market. Before applications are taken, the employer needs to decide what factors are necessary in the hiring process with regards to the nature of the job, the type of offense, and how long ago the conviction occurred.
First, an employer needs to research and discover any reasons for a gap in an applicant’s employment. A gap of employment should be a red flag for an employer that more research needs to be done. While not necessarily an omission of guilt or wrongdoing, a gap of employment can be a sign of a potential issue in the applicant’s history and warrants a closer look.
Second, employers should require reference checks and should adequately follow up with any previous employers. In addition, they should ask to speak with a manager or supervisor (if possible) rather than simply confirming ‘name, title, and rank’ with human resources.
Third, employer should require a criminal record check as long as it is necessary according to the nature of the job. In addition, there should be a statement on the application that states that a conviction for some crimes will not necessarily disqualify an applicant from the position. Since some crimes or convictions are not in direct contradiction with the nature of a job, it allows the potential applicant pool to still be fair and not single out those with a criminal record. Essentially, the “blanket approach” is not appropriate for selecting employees and employer should refrain from excluding anyone based purely because they have a criminal record or history. If the criminal action has no bearing on the nature of the job, then it should not be a reason for denying an applicant.
Finally, there should be a number of people involved in the hiring process in order to provide multiple perspectives and overall consensus if an applicant is qualified or not. Not only will this ensure better hiring decisions in general, but, it also helps protect against any future lawsuits because it makes the hiring process more in-depth. A hiring “team” is more likely to not only review all the documents in an applicants file, but, is also able to get a better sense of an applicant and whether additional background information needs to be done. Similarly, the hiring personnel should initial every document relating to the applicant to signify that they have read it and it was used in the hiring decision. This way, if a negligent claim is ever brought up, the company can better defend itself by explaining their hiring process and producing documents to show that they did in fact did their due diligence in regard to reviewing an applicant. Negligent hiring claims are still a growing a issue among the legal and ethical community and is continually being defined and revised. Ultimately, it can be prevented by following a laid out plan for hiring and reviewing an applicants and by thoroughly documenting the procedure. And while negligent hiring becomes more predominant, the question of negligent selection and negligent retention, similar issues, are also brought to light. While some states already include these issues within the umbrella of negligent hiring, other states consider it a separate issue with separate elements for basing a claim. Ultimately, the idea behind negligent hiring- and possibly selection and retention- is that employer has a due diligence to make reasonable steps in the hiring process to ensure that qualified applicants are brought into the workplace. While this may have ramifications for those with a criminal background, it is ultimately better for the public’s safety and the quality of service provided by company. Better-suited and qualified persons working a company or organization will improve the quality of everyone.