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. Volumes have been written about the evolution of the meaning of that phrase; but, from the standpoint of hiring managers, 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. Determining what a reasonable standard of care will be for every job classification may seem like a daunting task; and it could be, unless you remember that 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 you’re responsible for hiring a doctor for a medical clinic; and you’ve identified a candidate whom you’ve interviewed, had a court check done on, and talked to his references. Now suppose you hire the doctor; and, in the course of performing his duties, he injures a patient and the clinic is sued. Your defense will be based, at least in part, on the steps you took prior to making a hiring decision. But, for the sake of this example, let’s say the doctor had lost his medical license elsewhere in your state. It’s very likely that the injured patient will win because you “knew or should have known” that the doctor’s license to practice medicine had been suspended. As a matter of exercising “reasonable care” you should have called the State Board of Medical Examiners to verify that the doctor had a valid license. The point is you could have found out by making a simple call. By not checking, did you fail to use “reasonable care” in the hiring of that doctor? In all likelihood, the answer would 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. The point is its never appropriate not to check anything on a candidate for employment.