What is negligent hiring? Simply put, negligent hiring is the failure on the part of an employer to use reasonable care in the selection of employees, which results in harm to an innocent third party. OK, what does the term reasonable care mean within the context of the employment process? One classic definition would be that reasonable care would be the degree of care an ordinarily reasonable and prudent person would use in the same circumstances to avoid putting innocent third parties at risk of harm.
Now, what do we mean by harm? Is it just physical harm, such as violence in the workplace? No. Harm, within this context, can mean financial harm, harm caused by a defective product, or even harming another’s reputation and good name in the marketplace.
So, is there one standard of care the employer needs to exercise for every position? No. Why? Because the risk of harm will vary according to the type of position in question. Obviously, a higher standard of care is required if you’re hiring an airline pilot than if you’re hiring a fry cook.
About all that can be said to make sure that reasonable care is exercised in the hiring process, regardless of the position to be filled, is that checking more is always better than checking less. So why take any chances in the first place? The logical thing to do is require candidates for employment to submit a complete work history, provide appropriate references, and sign a comprehensive waiver granting the prospective employer express permission to not only verify the information on the resume, but also to contact references. Carrying out those three simple steps accomplishes two very important objectives:
- It ensures that people are who they claim to be—and that they can do what they claim they can.
- It proves the employer did, in fact, use reasonable care in the employee selection process.
The net effect is to improve hiring practices and avoid any possible accusations of negligent hiring. (In Part 2, I will provide a real-life example of what can happen when reasonable care isn’t used.)