Good Selection Practices

Good Selection Practices

Poor selection practices could potentially lead to claims of negligent hiring. There has been an increase in such claims. Examine your recruitment process, including selection, evaluation, retention and training procedures, in order to exercise reasonable care in determining a candidate's fitness for employment and continuation of employment. At the same time, you must remain informed about federal, state and local discrimination laws, to understand which questions can or cannot legally be asked during an interview or on a job application.

Reference checks are a part of good selection practices. Other types of background checks or pre-employment testing may also be necessary, depending on the position involved.
Carefully review potential questions and consider the following to reduce liability for negligent hiring, retention and training:
Identify potential liability factors such as high stress, handling negotiable instruments, driving vehicles, working with children and access to private property.
Identify the traits related to the potential risk for each of those factors, such as poor driving records, criminal records or credit records (the use of which is extremely limited).
Question the candidate about any gaps in employment. There may be a legitimate explanation, but the question is still valid.
Contact each previous employer to verify not only dates of employment and positions held, but also information about the employee’s reliability, tendency to engage in violent conduct, if any, and any instances of insubordination, dishonesty or other potential problems. Though many employers follow a policy limiting the amount of information given to prospective employers, carefully document the fact that you attempted to obtain the additional information but were unsuccessful, and document all information received from prior employers and references.
Obtain a release protecting you and the people you contact about references from invasion of privacy or defamation claims.
If a candidate has a criminal history, determine if the candidate’s criminal background is related to the potential job. Analyze factors including the job and its duties; the timing, nature, number and circumstances of convictions; the relationship of the conviction to the job; and the candidate’s employment background before and after the conviction. Limitations exist on the type of criminal background information that can be gathered and how information can be used.
Where necessary for the job, require applicants to provide certified copies of driver records, insurance, credentials, licenses, transcripts or other documents that you may require for employment.
Revise employment applications to advise applicants that omissions, misrepresentations or falsifications of information will result in the applicant’s rejection or the employee’s termination.

Preventing Negligence in Hiring. As discussed in Privacy, employees in California have a constitutional right to privacy. You are restricted in inquiries into many areas of the private lives of both employees and candidates, including some which have an impact upon the job. At the same time, employers are coming under increased scrutiny for negligently hiring and/or retaining employees whose criminal records, history of drug or alcohol abuse or related problems involve an unreasonable risk of harm to others. This scrutiny particularly pertains to employees whose work duties may affect the health and safety of both co-workers and the public, such as employees who deal regularly with customers in their homes or those operating motor vehicles.

Before an increase in negligent hiring and retention cases, under the doctrine of respondeat superior, employers generally were held liable only for negligent and intentional acts of employees done in the course and scope of employment when these acts injured others. Under respondeat superior, injured third parties generally could not recover damages against employers if the wrongful acts occurred outside the scope of the employee’s employment or were not carrying out the employer’s business.

Under the negligent hiring and retention doctrine, however, injured third parties have, in certain situations, successfully sued employers for negligent hiring or retention of employees who engage in criminal or violent acts that occur after working hours or outside the scope of employment. Negligent hiring and retention enables plaintiffs to recover damages in situations in which the employer was previously protected from liability. This doctrine also includes the duty to “exercise reasonable care for the safety of members of the general public,” and provides that a person conducting an activity through employees or other agents is subject to liability “(a) for harm resulting in his conduct if he is negligent or reckless; and (b) in the employment of improper persons or instrumentalities in work involving risk or harm to others.”

Liability exists when an employer places a person with known tendencies, or tendencies that should have been discovered by a reasonable investigation, in a position where one should have foreseen that the person posed a threat of injury to others. For example, you can be found negligent in employing a person whose violent criminal background would have come to light in a routine reference check. Current law emphasizes the importance of a thorough investigation into an employee’s background, especially in sensitive positions, positions of trust or positions with public contact. If the employer knew, should have known of or failed to use reasonable care to discover the employee’s unfitness for a position before hiring him/her, employers have generally been held liable. Plaintiffs have prevailed in situations where:

A pastor sexually molested one of his adolescent parishioners, where there was evidence that he had sexually molested young males in the past.
A teacher, hired by a boarding school, kidnapped and assaulted several children. The teacher had admitted on his employment application that he had been arrested and charged with violating a public indecency statute and that he had a bench warrant outstanding against him. The school failed to investigate this incident and hired him anyway.

Liabilities and Penalties.To recover damages for negligently hiring or retaining an employee who causes the plaintiff’s injury, the plaintiff generally must establish all of the following:

The existence of the employment relationship
The incompetence of the employee who caused the specific negligent act on which the legal action is based
Your actual or constructive knowledge of the employee’s incompetence
Your legal duty to select fit and competent employees
That the employee’s act or omission caused the plaintiff’s injury
That your negligence in hiring and/or retaining the employee resulted in harm to the third party

In addition, a plaintiff can recover punitive damages under the negligent hiring or retention doctrine if it is shown that you recklessly or intentionally hired or continued the employment of the employee who caused the injury. Under California law, a plaintiff must show that the employer engaged in one or more of the following:

Had advance knowledge of the unfitness of the employee and employed the person with a conscious disregard of the rights or safety of others
Authorized or ratified the wrongful conduct for which the damages are awarded
An officer, director or managing agent of the corporation was personally guilty of repression, fraud or malice