Running a background check - preventing negligent hiring

Brian W. Gill

The scenario: an applicant for a position as four-color press operator looks great "on paper"--10 years of experience, worked up through the pressroom to a current position as first press operator for a high-quality print shop. Unfortunately, the shop experienced cutbacks and the applicant got the short end of the stick because another employee had more seniority.

An ideal find, right? Don't be so sure. Although the applicant sounds wonderful, the company still let the worker go.

When you contact the former employer for a reference, the firm's policy is to give only your applicant's job title, dates of employment and pay scale.

How do you find more information on the applicant? Should you care about such things as negligent hiring? Yes, because the potential liability far outweighs the cost in time and effort of doing a little checking before offering employment.

Negligent hiring, a hot topic in the courts, occurs when employers are held liable by someone who is injured by an employee who has committed a violation on the job. The injured party contends the employer's negligence put the employee in a dangerous position where the worker could hurt someone.

In numerous cases, employers have been sued because employees threatened, raped, assaulted or killed workers or customers. Courts are ruling that employers have a duty to exercise reasonable care in hiring individuals who could, as a result of their employment, pose a threat to the public.

Negligent hiring is based on employers' failure to uncover job applicants' incompetence by checking references, criminal records or general background information. Negligent retention can be a result of employers' failure to discover employees' inadequacy for a particular position and employers' subsequent failure to take corrective action, such as training, re-assignment or discharge. The principal difference between negligent hiring and negligent retention is based on when employers are charged with learning of an employee's unfitness.

Hiring and security procedures, as well as background screening processes, should be strictly controlled for individuals having access to the public and potentially dangerous equipment. Since there is a risk of harm to the public in these situations, employers are held to a higher standard of care to investigate employees. Employers should be aware of danger signals that may reveal employees are unstable or unfit to remain in a position. Signals include stress, fatigue, mental illness, carelessness, aggressive or abusive behavior and drug/alcohol use. To avoid negligent hiring claims, employers should conduct reasonable investigations into prospective employees' fitness.

As protection against claims, employers should understand the theory of negligent hiring/retention, equal employment opportunity mandates and privacy concerns. In addition, they should develop effective pre- and post-employment policies.

The following guidelines will help executives develop complete background checks on potential employees and reduce their risk of negligent hiring/retention claims.

* Job applicants should be required to complete employment applications that meet federal, state and local employment laws. Applicants should sign applications, stating all information they provide is accurate and truthful. Applications also should include authorization to obtain information from former employers, educational institutions and other individuals listed on forms. Authorization also should include indemnification of prior employers and prospective employers for liability arising from such inquiries.

* Always obtain applicants' written agreement to check personal and employment references. When contacting references, ask about honesty, trustworthiness, reliability and character. Probe further for factual examples if prior employers describe an employee as a "good worker."

* If prior employers are reluctant to release information regarding applicants, record the refusal in writing. In the event of a lawsuit, written reports establish that attempts were made to obtain references.

* All inquiries and information should be documented, including telephone inquiries and interviews with professional and personal references as well as prior employers.

* Try to get another contact. Ask, "Is there anyone else who has worked with the applicant?"

* Use job interviews to resolve doubts about information on employment applications.

* Keep responses confidential and assure all parties of confidentiality.

The four-color press operator mentioned above may prove to be the best employee the company ever hired--or the worst. In today's legal climate, reference checks have become a necessary burden on employers. However, they also will help give you 100 percent confidence in your prospective employee.

BRIAN W. GILL Senior vice president of education and human relations, Printing Industries of America, Alexandria, VA

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