Avoiding Negligent Hiring Claims

To avoid liability for negligent hiring, employers should adopt a series of “best practices” aimed at ferreting out all evidence of risk relating to a job applicant’s temperament, social interaction, personal demeanor, job history and stability, and criminal record.  If applicable, an employee’s educational history, driving record, credit record, and military record should be likewise investigated.

The following steps can be implemented to minimize the risk of a negligent hiring claim:

  • Thorough Interviewing. Use skilled and thorough interviewers to screen job applicants.  Maintain notes about what questions are asked, and how they are answered.  Inquire diligently about any missing information on job applications or any inconsistent responses.  Ask employees to verify any questionable information.  Insist on evidence to explain any gaps in employment.  Do not rely on outsourced interviewers unless they can perform thoroughly and efficiently under the employer’s close management.
  • Reference Checks. Call every single reference provided by an employee. If the references are not available, or do not return phone calls, inquire further.  If any reference is evasive, unavailable, or odd in his or her responses, inquire further into the validity of the reference.  Contact other suitable references not specifically provided by the employee.
  • Job Applications. Require job applicants to complete every single section of the job applications and to provide all requested documents or materials.  Insist on strict compliance before an applicant’s application is considered.  Scrutinize the application and all other submissions for incompletely, inconsistency, or suggestive entries that may require additional inquiry.
  • Criminal Background Checks. These are simply not optional.  Every employer should conduct a criminal background check on prospective new employees.  Many vendors perform such background checks.  Employers should contract only with a vendor who will conduct a thorough national criminal check of the job applicant.
  • License Checks. If an employee maintains or maintained any licenses, inquire about the current status of those licenses. Why, for example, would a former attorney be applying for a job in the insurance industry.  Is the license to practice law no longer valid, and if so why?
  • Obtain Written Authorizations. Ask potential employees to execute authorizations and releases for a variety of different kinds of information. Such forms may expedite the employer’s request for criminal records, driving records, educational records, and other background checks.  Be sure to order these records efficiently, and to review them thoroughly once they are produced.
  • Telltale Signs. Be wary of any unusual or suggestive entries on the job application, additional submissions offered (but perhaps not requested), or answers given by the applicant during the job interview. An employee who changes subjects frequently, or who focuses excessively on older jobs rather than recent jobs may be hiding something.  Think twice about hiring anybody who offers to work for free for the first week or two, or who suggests a probationary period, or who indicates willingness to take a substantial pay cut.  Attempt to find out why.
  • Personality Testing. Where appropriate and useful, require job applicants to take a personality test. Be sure that such tests are administered uniformly among all applicants.
  • Double Review Process. Require two persons to review each job application, along with reference checks and other materials. Allow each person to interview the applicant and to reach independent results.
  • Maintain detailed records of every step taken to screen potential candidates before hiring them. Job applications, interviewer’s notes, reference check results, letters of reference, criminal background check, credit checks, proof of valid driver’s license and driving record, and other screening results should all be kept on file.
  • Disciplinary Action. If the applicant is hired and later commits an infraction in violation of the company policy, be sure that the discipline is promptly and appropriately administered.  Whether the employee is terminated for a serious offense or otherwise disciplined for lesser offenses, the employer should invoke its policies and apply the discipline without delay and exception.

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