As 2022 begins, many employers continue to find themselves short-handed and having trouble securing or retaining good employees. This has led many to shorten or simplify the hiring process, perhaps leaving out background checks and intentionally overlooking red flags to fill a vacancy. However, this can be a risky move for your company, in part due to the laws regarding negligent hiring and retention.
What are these rules? What do they mean in your business operation? Moreover, how can you minimize your risk? Here’s what every employer needs to know.
As its name suggests, liability for negligent hiring and retention is legal grounds for making the employer responsible for certain employee actions due to failure to take reasonable care in the hiring and employment process. It may mean not properly investigating a candidate when hiring, ignoring red flags from a candidate, or retaining an employee even when a potential danger is known.
One of the most common risk points is failure to do thorough background checks. A company that doesn’t look into a new delivery driver’s history to see that they had a DUI conviction might be liable for an on-the-job accident. An employer’s decision not to check social media may miss the applicant’s photos of drunken behavior. In both cases, skipped steps may be viewed as not taking reasonable care.
For as long as the employee is on your payroll, you also become responsible for responding appropriately to potential red flags in their behavior. For example, that delivery driver might get into an altercation with a coworker that other employees witnessed. If your company continues to send the driver on deliveries and they’re involved in road rage, the employer may be negligent for retaining the worker in that position.
No employer can completely foresee all problems that their employees may cause. Nevertheless, every employer can take steps to show that they have taken reasonable care. This generally refers to the level of care that a reasonable person would take in a given situation. What could reasonable care entail for an employer?
Begin by using a thorough, consistent system of background checks when hiring. Background checks may take different forms depending on the position. Various checks include employment history, driving history, criminal records, unpaid taxes, and social media. Document findings from these background checks, including any reasoning you have to overlook a potential problem.
The employer may also want to perform occasional checks on current employees in sensitive positions. After all, you don’t want to discover only after an accident that a delivery driver has been moonlighting for another employer and may be driving your trucks without adequate sleep. Create a universal policy of random or scheduled background checks during employment to create consistent enforcement.
Finally, an employer must carefully investigate incidents, accidents, and complaints about their employees or the workplace. Once a complaint is lodged about something like harassment, further incidents could be the employer’s responsibility if nothing is done. Similarly, an employer should endeavor to find out if an employee was at fault for an accident before allowing them to continue with their position.
The best investigation is an independent one done by an impartial third-party service. After you receive reports on the investigation, consult with your attorney about how to respond to the results with both concern for employee rights and for limiting company risk.
Want to know more about avoiding employer liability for negligence when it comes to employee behavior? Start by meeting with the team at J.P. Investigative Group, Inc. We’ll work with you to create a comprehensive plan to limit liability from the application and hiring process throughout the employment period. Make an appointment today to learn more.
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