February 26th, 2024

The process of hiring new employees is an essential part of any company’s success. However, there are potential risks that come along with the benefits of expanding the workforce. These risks include the possibility that the company could be faced someday with a negligent hiring claim in connection with a new hire.

Negligent hiring claims seek to hold an employer directly liable for its own actions. This is different from vicarious liability. Under a theory of vicarious liability, an employer can be liable for the tortious acts of an employee who was acting within the scope of their employment when the acts were committed. Because negligent hiring claims are based on the employer’s own alleged negligence, these claims can be maintained even where there is no vicarious liability. Such claims can therefore be attractive to plaintiffs’ attorneys who are looking for another avenue to recover directly from an employer.

Negligent hiring claims are based on the theory that an employer allegedly failed to exercise reasonable care during the hiring process, and that failure led to the employment of an individual who caused harm to others. To prevail on such a claim, a plaintiff typically must show that the employee had a known propensity of being a danger to others in the past; the employer knew or should have known through reasonable discovery about these acts; and the employer hired an unfit employee and placed him in a situation where he could create an unreasonable risk of harm to others.

The good news is that there are many practices that an employer can implement to reduce the risk of negligent hiring claims. These practices include:

  • Thorough Background Checks: Conduct comprehensive background checks for all potential hires. This can include criminal history, credit checks (where relevant), employment history verification, and social media. Ensure that these checks comply with local laws and regulations.
  • Standard Interview Process: Develop a standardized interview process that assesses an applicant’s skills, experience, and behavioral traits relevant to the job. This consistency ensures that all applicants are evaluated fairly and consistently.
  • Check References: Contact the references provided by the applicant to gain insights into their past performance, work habits, and character. Careful questioning of references can provide valuable information about an applicant.
  • Document the Hiring Process: Maintain thorough records of the entire hiring process, including job applications, resumes, interview notes, reference check results, and any pre-employment assessments. These records can serve as evidence that hiring decisions were based on careful consideration.
  • Implement Trial Periods: Consider offering a trial period or probationary period for new hires. This allows both parties to assess whether the job is a good fit and minimizes risks associated with a full-time commitment.
  • Stay Informed About Legal Changes: Employment laws and regulations are subject to change. Stay informed about updates in your state to ensure your hiring process remains compliant.

Negligent hiring claims can have far-reaching consequences and have the potential to damage a company’s reputation and finances. However, by having a hiring process that includes thorough background checks, standardized interviews, reference checks, and the documentation of these and other best practices, businesses can significantly reduce the risk of such claims. Additionally, following these practices will also help a company defend against a negligent hiring claim if one is filed. To successfully defend against negligent hiring claims, a company must demonstrate that it took reasonable steps to screen and evaluate candidates, and that it had no reason to anticipate the employee’s potential for harm. Making the above practices part of the hiring process will put the company in a good position to make that showing.

If you would like more information about preventing or defending negligent hiring claims, please contact Danielle Brim (dbrim@setlifflaw.com) at (804) 377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.