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How To Avoid Negligent Hiring

HandelontheLaw.com Staff Writer

Thursday, February 06, 2014



How To Avoid Negligent Hiring
Employee Hiring

Among their numerous concerns, employers must avoid successful lawsuits by avoiding hiring the wrong person in the first place. Here, the “wrong person” is a violent person or a person whose criminal background can affect his/her work, particularly if the person does not reveal that criminal background. If the wrong person is hired, the employer could be sued by the employee or by other people who have to deal with that employee, and litigation for negligent hiring of the wrong person is an area of employment litigation that is growing fast. If an employer is sued for negligence, win or lose, the employer will have to go through litigation, pay attorney’s fees and risk negative publicity; consequently, the ideal is to avoid the suit completely.

In order to avoid those negligence suits or win them when they are brought, employers must use “due diligence” in hiring. An employer must rely on his/her own state’s elements of “due diligence” and should consult/retain a lawyer who specializes in Employment Law. However, it is basically true that if an employer hires a person the employer knew or, using reasonable care, should have known to be dangerous, unfit or unqualified, the employer can be successfully sued for negligence. Due diligence consists of 2 basic aspects: the first, used for all job applicants, is the interview and reference check; the second, used for “finalists,” includes a background search, with multiple tools to check public and private records ensuring that the resume is accurate and to check for the applicant’s criminal history. Employers can automatically discourage undesirable applicants by simply telling them about those 2 aspects.

Within those 2 aspects, there are actually many desirable steps, such as: getting a written, signed consent for the background check; using an application form with standard questions about criminal convictions and employment in order to see gaps in employment; the questions about criminal convictions should not be too broad and the application should also say that criminal convictions do not necessarily bar employment; have the application form say that lying on the form is grounds for firing, whenever the lying is discovered; look for “red flags” like applicants avoiding questions or giving no details about criminal convictions or who “can’t remember” supervisors at past jobs; checking educational information such as accreditation of schools themselves and whether the person attended the school, studied what he/she said he/she studied, achieved the grades and distinctions that he/she claims to have obtained, and actually graduated (if the person is claiming to have graduated from that school); employers and information on vendors and temps; using I-9 (availability for employment in the U. S.) verification and having any offer letter state that the offer is contingent on background checks that are subjectively satisfactory to the employer.

Of course, the application process is further complicated by other trends and issues, such as: the idea that someone cannot automatically be denied due to criminal convictions; the relevant use and safe disposal of credit check information; respecting all legal and privacy rights, giving the applicant a written summary of rights, and keeping the information for six years; paying attention to applicable State laws; the limitations of supposed “nationwide” crime databases; Sarbanes-Oxley screening concerns for public firms; privacy of the applicant’s personal information during screening; ensuring that all prior employers will verify job titles and employment dates; and using additional information and resources on the National Association of Professional Background Screeners’ web site, found here: www.napbs.com

DO’S AND DON’TS

DON’T be intimidated by the process or the people.

DO consult/retain a lawyer who specializes in Employment Law.

DO research your state’s definition and elements of “due diligence,” along with legal requirements of the hiring process.

DO focus on the 2 basic aspects of “due diligence”:
a. interview and reference check, for all applicants;
b. a background search, with multiple tools to check public and private records ensuring that the resume is accurate and to check for the applicant’s criminal history, for finalists.

DO advise all applicants that you will use both aspects of “due diligence.”

DO obtain a written, signed consent for the background check.

DO use an application form with standard questions about criminal convictions and employment in order to see gaps in employment.

DON’T make questions about criminal convictions too broad.

DO have the application say that criminal convictions do not necessarily bar employment.

DO have the application form say that lying on the form is grounds for firing, whenever the lying is discovered.

DO look for “red flags” like applicants avoiding questions or giving no details about criminal convictions or who “can’t remember” supervisors at past jobs.

DO check accreditation of schools on the resume.

DO check educational information such as whether the applicant:
a. attended the school
b. studied what he/she said he/she studied
c. achieved the grades and distinctions that he/she claims to have obtained
d. and actually graduated (if the person is claiming to have graduated from that school).

DO check employers and information on vendors and temps.

DO use I-9 (availability for employment in the U. S.) verification.

DO have any offer letter state that the offer is contingent on background checks that are subjectively satisfactory to the employer.

DO only relevantly use and safely dispose of credit check information.

DO take care to respect the applicant’s legal and privacy rights.

DO give the applicant a written summary of rights and keep the information for six years.

DO appreciate the limitation of supposed “nationwide” crime databases.

DO observe federal Sarbanes-Oxley screening concerns for public firms.

DO safeguard the privacy of the applicant’s personal information during screening.

DO ensure that all prior employers will verify job titles and employment dates.

DO use additional information and resources on the National Association of Professional Background Screeners’ web site, found here: www.napbs.com

Kathy Catanzarite


[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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