Paul W. Barada

Suppose you’re one of those employers who believes checking references on candidates for employment is too risky, because you might be sued for invasion of privacy.

How to Avoid Negligent Hiring Litigation

Now suppose you hire someone based solely on the resume and interview. Let’s also suppose your new employee gets in a fight at work and puts a fellow employee in the hospital. Given all that supposing, do you think the injured employee could take you to court because of what the other employee did?

If “no” is your final answer, you very well could end up paying a considerable sum for failing to use reasonable care in the hiring process.

How could that happen? By negligent hiring.

Negligent hiring is the failure to use reasonable care in the employee selection process, resulting in harm caused to others. Every employer has a right and responsibility to hire the best person for the job, but employers also have a legal duty not to hire people who could pose a threat of harm to others. That threat can include everything from slight to fatal bodily injury, theft, arson or property damage. Therefore, employers are required to use reasonable care when hiring employees to reduce the risk.

Take Care in Hiring

The definition of “reasonable care” depends on the degree of the risk of harm to others. The greater the risk, the higher the standard of care required. While it might be reasonable, for instance, to just verify employment dates and job titles on a candidate for a custodial position, that same exercise would hardly be adequate for hiring a brain surgeon. The standard of care required when filling such a skilled position would, at the very least, include carefully checking references and verifying all academic and professional credentials before making a hiring decision.

Now, suppose you’re in a business that involves employees using a company vehicle or entering the homes of others. What standard must you meet to show reasonable care was used? Will a simple court check suffice, or will it be enough to just verify previous job titles and employment dates?

Check Everyone’s References

Given the difficulty of knowing what will be viewed as reasonable in different circumstances and for different types of jobs, what’s an employer to do? The sensible and appropriately consistent way to demonstrate reasonable care and ensure the most qualified candidates are hired is to check references on everybody.

Clearly, the same degree of thoroughness in checking references will not be required for every position within an organization. A more detailed evaluation of past job performance will be needed for the brain surgeon than the custodian. But in either instance, more than a cursory verification of the basics should be required as a matter of policy.

So which would be worse: Running the risk of being sued for invasion of privacy or hiring someone with a history of violent workplace behavior? The whole point of the employee selection process is to hire the best people possible for your company. A secondary objective is protecting your company from possible negligent hiring litigation. Appropriate job performance-based reference checking across the board will help accomplish both.