The screening process: how to avoid liability for 'negligent hiring'.

Author:Walker, Jennifer A.
Position:Human Resources

From the angry, dejected factory worker to the disgruntled, gun-toting day trader, shocking headlines warn us of an increasing incidence of workplace violence. The untold story in these tragedies is the fallout facing those who employed the perpetrators--and who now may find themselves the target of negligent hiring lawsuits.

In legal terms, "negligent hiring" occurs when a reasonable person, given the totality of circumstances, failed to adequately investigate a prospective employee's propensity for violence.

How extensive a pre-employment investigation should be often depends on whether the position involves significant contact with customers, members of the public or other employees.

Thus, an employer was held liable when a truck driver with two prior rape convictions sexually assaulted a hitch-hiker because the employer should have known that truckers are likely to pick up hitchhikers.

If you're responsible for screening job applicants and making hiring decisions at your workplace, what can you do to reduce the chances of a negligent hiring lawsuit?

Conducting careful reference and background checks of potential employees, and reviewing any information learned through the investigation in light of the position, is essential. But you must walk a fine line between seeking legitimate information about an applicant and violating that applicant's right to privacy.

Under Michigan law, an employer is immune from civil liability when, in good faith, he or she discloses information about an employee's work performance that's documented in the individual's personnel file.

Nevertheless, many employers are hesitant to disclose information without additional protections. So, as a first step, it's a good idea to require applicants to sign a release authorizing you to collect lawful information and authorizing their current and former employers to disclose all requested information. Employers and former employers are much more likely to provide requested information when presented with a signed release.

Like almost everything else today, the task of screening potential employees is made much easier with the help of the Internet. The Web gives employers a wealth of resources for verifying basic information about applicants, and a number of online employee screening agencies offer a variety of background and reference-related services. The cost of these services depends on the complexity of the assignment, but generally ranges from $5 to $20 for basic...

To continue reading