Generally speaking, the best way for those responsible for hiring to avoid being sued is to use reasonable care in the hiring process. The key, therefore, is to have a general understanding of what “reasonable care” means. It should be sufficient to say that collecting more information about a candidate for employment is always better than collecting less.
What constitutes reasonable care will vary, depending on the potential risk of harm to innocent third parties. The standard of reasonable care, in other words, will be much higher for a brain surgeon than it will be for a custodian. In other words collecting more information rather than less is always better – even for the custodian!
Let’s look at the concept of reasonable care from another perspective. Many times, employers have been found liable for the actions of their employees because they “knew or should have known” about an employee’s history of, let’s say, workplace violence. Suppose an hourly worker who has been interviewed and whose references have been checked is hired. Now, suppose that candidate who was just hired injures another employee in a workplace altercation – and the injured employee sues you and your employer for the injuries he suffered. Your defense will be based, at least in part, on the steps you took prior to making the hiring decision. But for the sake of this example, let’s say the hourly worker has a record of previous convictions for workplace violence in other manufacturing plants in the same state. It’s very likely that the injured employee will win the lawsuit because you “knew or should have known” that the new employee had a history of previous convictions the same offense and you should have known about it. A judge is likely to say that as a matter of exercising “reasonable care” a court check should have been done prior to making the hiring decision. The point is the record of previous convictions could have been uncovered by doing a simple court check. By not checking, therefore, did you fail to use “reasonable care” before hiring that new employee? In all likelihood, the answer will be “yes.”
Finally, the word “harm” isn’t limited just to the everyday notion of physical harm. Harm to an innocent third party can be economic harm, psychological harm, or a dozen other types of harm. Collecting more information about a candidate is always better than collecting less!