Negligent Hiring

Foundation of any company’s success is professionalism, devotion, and efforts of its employees. A main goal of every employer is to choose the best applicant among workforce in order to be confident in hiring a high-qualified employee. The employer should be very careful during the interview. He or she must determine to what extent a candidate appropriates for the job and if one has enough qualification for the required responsibilities. A task is also difficult because, as a rule, the job interview is a first meeting of two unacquainted people. Thus, an employer must have in-depth knowledge in human resource management to identify the strengths and weaknesses of a potential worker during the first meeting. One must clearly understand what skills the job requires from a candidate and, in light of this set, determine if the applicant has the suitable professional experience and personal qualities to undertake the work duties. Undoubtedly, the future success of a company strongly depends on the employer’s ability to make a right decision regarding hiring new workers. However, not everyone knows that hiring new candidates is a great duty for the employers since they are responsible for every single action of their staff members. Therefore, this paper discusses a problem of negligent hiring in the scope of HR management. Although this concept is rather new in the context of managing people, the notion is equally important to supervisors, ordinary employees and usual people who are willing and planning to be employed. In this regard, the paper highlights the significance of negligent hiring and issues related to it with respect to a new candidate hiring procedure in general.

First and foremost, to discuss the indicated theme, it is important to understand what negligent hiring is. Nadell defines the term as “a legal accusation which incurs the employer if he does not test the new candidate and applies potentially dangerous man for position.” It follows that negligent hiring is one of the problems facing employers with regard to criminal justice. The concept is based on the fact that employers, who know or have a reason to believe that an employee poses a threat to society, can be held liable for damage caused by an employee (Ferguson). The employer may be directly liable if he or she hires an applicant with carelessness for a job, which involves an undue risk of doing harm to others.

The main reason for studying of biographical data of an applicant is the desire to hire the best employees.The intensity of the person’s biography checking depends on the level of responsibility connected with his or her position. At this stage of the selection process, an employer faces with several potential problems. On the one hand, this process is illegal, to some extent, since it may refer to discrimination of a potential employee on the basis of one’s background characteristics. The Fair Credit Reporting Act and the regulation by the Equal Employment Opportunity Commission have indicated such issues (Adler). On the other hand, another risk is of ethical nature. Namely, background check seems morally incorrect, to a certain degree. In other words, an employer looks for the facts which an applicant has not mentioned in the resume or during the interview willing not to disclosure this information.

Nevertheless, if one has not carried out the studying of the biographical data of a candidate, an employer may be liable under the law for negligent hiring. Employers may be prosecuted for hiring an employee, who later committed indictable acts in case they have put the employee in a position that allowed a person hired to commit crimes. According to the doctrine of negligent hiring, the employer can be liable for the actions of an employee outside the sphere of employment, when he or she is not at work at all (Muller 15). Foremost, there must be an employment relationship implying that a person was hired in accordance with the requirements of employment established by the employer. Therefore, a relationship between employer and employee should be connected with the work.

Simultaneously, in order to sue the employer for negligent hiring, a plaintiff has to evidence that the company could not determine that a hired worker has had a history of such a behavior. Illegal actions committed by an employee must coincide with a dangerous tendency evidenced in her or his previous criminal behavior. To illustrate, an example of this criterion can be the process Reid v. Kelly. In the case, a security guard raped a woman in the building where he worked, but the court ruled in favor of the employer. Although the guard was indicted five years ago because of the incident of domestic violence and fired from a previous job three years ago after a fight with an employee, these crimes did not comply with a definition of sexual assault.

Hence, a first determinant in the process of negligent hiring is the lack of checks and careful consideration of potential employees. Failure of the employer to do verification of history and preparation (training) of the applicant may later be used against the employer in a court, if an employee commits illegal actions related to one’s work. In case during the examination of the application or during the interview with the applicant certain factors are identified, the employer is obliged to carry out further research into the history of the applicant, especially if one has detected the fact of his / her criminal record. Ferguson aptly noted that, “factors requiring special attention include things like frequent changes of place of residence, the gaps in the work (for some time did not work) or a criminal record.” If an employer will not clarify these alarms and the applicant will commit criminal actions after he or she is hired, the event may be on employer’s responsibility.

Moreover, the lack of action by the employer upon detection of relevant information is another factor of criminal responsibility. The employer may be found guilty if he or she knew that the employee may be dangerous and has not taken action to one’s dismissal and the harm was caused as a consequence. Most courts consider that the study of the history of the applicant carried out prior to hiring must be proportionate to the work for which the person claims. By hiring a person, the employer must take into account the potential risk, harm or damage that may be caused to third parties and conduct relevant to this risk researches. Industries that work with especially poorly protected categories, such as child care or work with the elderly, may require higher standards when considering the previous history of the applicant, compared to other industries, such as retail trade or technical professions.

Employers are responsible for actions taken by their employees outside of their duties. For example, an employer hired a manager of the company for the maintenance of an apartment building. The former did not explore the person’s past, and later the man insulted the employer. As a result, a court may find the employer responsible for this event. Sometimes, cases of negligent hiring entail the damages in hundreds of thousands of dollars. Thus, employers have to approach the issue with maximal accuracy. To illustrate, Erling asserts that, “In considering a claim for negligent hiring, in the first place, it is taken into account a major factor of risk of harm from dangerous employee that could have been foreseen” (65). Therefore, the employer should not underestimate a danger of negligent hiring.

Specificity of work is also important in terms of the employer’s obligations. Murphy emphasizes on the danger of neglecting the background checks. The scholar is convinced that, because of this, first-class experts do not apply for jobs, but more importantly “firms, which practice negligent hiring, have risk of potentially catastrophic losses” (Murphy 23). Specifically, companies that are engaged in maintenance of houses, centers of medical care, and health services which work with children and the elderly are at the highest risk.

For many years, one of the most effective means of verifying the information about the past of a person has been a lie detector test. The aim of the polygraph was to confirm or deny the information mentioned in the declaration. However, the law protecting the right of employees from a polygraph test enacted in 1988 seriously restricted the use of lie detector in the interview for a job.This law made it illegal to use polygraph tests by any employer.

Checking the biography of a new candidate or obtaining recommendations from the previous employers is usually hard. Hence, practitioners have recently added such a term as negligent recommendations to the process of negligent hiring. Lawyers and new employees may refer to this concept when the former employer does not warn about really serious problems related to the previous employee. Namely, some employers do not reveal important facts about applicants making the process of hiring a difficult guessing game. Adler emphasizes, “Regardless of the difficulties that employing organizations face during the study of background and reference checks, they have no other choice, but to do it properly” (45). Recognizing the importance of research carried out in the selection of employees, at least 26 states passed laws offering varying degrees of protection to employers who give honest recommendations and report accurate information about current and past employees. The purpose of the law is to facilitate employers to provide and receive information about employees.

One more important test at the pre-hiring of a new candidate for a job is a test for drug and alcohol addiction. Advocates of programs of drug testing argue that these programs are required to ensure workplace safety, reliability and high-level performance. At the same time, critics of drug testing argue that drug testing is unwarranted invasion into private life. Although disagreements persist, drug testing in the United States gains more and more popularity. Additionally, an employer may refer to a test for alcohol before hiring. Experts think that analysis of blood is one of the best methods. Nevertheless, using of this method is rather hard because of a necessity of using specially trained personnel to conduct such tests. Propagation of such testing varies per industries. However, the absence of these tests can lead to disastrous consequences. Hence, the tests have to be used in every sphere and be mandatory to prevent any potential crimes committed by drug- or alcohol-addicted people in order to avoid any material losses for organizations.

In conclusion, negligent hiring is a very important topic in HR management. Thorough awareness about the issue has to be clear to every employer to avoid crimes committed at work and protect innocent staff members from dangerous employees. Therefore, employers should study some facts from the employee’s biography and background. By performing such a procedure, they will be able to minimize the risks of organizational performance disruption, legal issues, and damage of a company’s reputation among other threats.

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