1. Negligent Hiring/ Negligent Retention
Compliance Matters

2. Definition of “Negligence”
The failure to use reasonable care
Failure to use a reasonable amount of care when such failure results in injury or damage to another
Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party

3. What is Negligent Hiring?
The potential liability of an employer for the actions of an employee who was selected for employment without adequately determining the person’s qualifications for the job.

4. What is Negligent Retention?
The prospective liability an employer faces by retaining employees who it knows (or should know) are not qualified to perform their job task or have mental or physical conditions or propensities that result in them being hazards to themselves or others.

5. Good Interview Techniques
Effective job applications
Good interview techniques
Background and reference checks
Drug testing
Consistent enforcement of employment policies

6. Interviewers can ask these questions
What would I find if I ran a background check relative to the use of illegal drugs?
Have you ever been fired or asked to resign from a job?
Do you work well under pressure?

7. Interviewers can ask these questions
How well do you get along with your current or former supervisor/co-workers?
How do you think your current or former supervisor will respond to my request for a reference?
What are your strengths/weaknesses?

8. Who’s background should you check?
All employees can do damage
30% to 40% lie on applications/resumes
42% of education credential checks revealed “discrepancies”
Average cost of a negligent hiring settlement: $1.6 million

9. Make it a pre-employment check
Basic rules
Make it a pre-employment check
Always get a consent form signed by the applicant prior to conducting the background check and/or drug screen
Check references by talking to former employers
If obtaining a credit report, make sure consent is also received from applicant
Do not obtain medical records (except for ADA accommodations)

10. Improving information accuracy
Advise applicant that accurate information is essential
Make sure that your company has a disclosure statement that is signed by all applicants
Advise applicant that all information provided will be verified.
Previous employment
Previous education (when necessary)
Background check and drug screen

11. Resigned; asked for $1.5MM severance
Meet Dave Edmondson
Former Radio Shack CEO
Lied about college
DWI charges
Resigned; asked for $1.5MM severance

12. Hired by a Staffing Company Attacked supervisor
Meet Meredith Turner
Hired by a Staffing Company
Attacked supervisor
Staffing Company could be liable; complete hiring check was not deemed “thorough”

13. Claimed degrees from 3 colleges
Meet Marilee Jones
Dean of Admissions, MIT
Claimed degrees from 3 colleges
Actually attended one school part time for one year

14. Integrity
Holding integrity is sometimes very hard to do because the temptation may be to cheat or cut corners. But just remember that “what goes around comes around,” meaning that life has a funny way of giving back what you put out.

15. Avoiding negligent hiring and negligent retention
How can employers avoid negligent hiring and negligent retention claims?
By understanding their elements and executing a preventative maintenance plan on a consistent basis.

16. Owner of a small temporary staffing company Mary’s downfall
The Case of Mary Foley
Owner of a small temporary staffing company
Mary’s downfall
Hired a retired military man as a night watchman at a warehouse.
Was he a retired military man?
Is Mary liable?

17. Criteria for demonstrating negligent hiring
The existence of an employment relationship
The employee’s incompetence
The employer’s actual or constructive knowledge of such incompetence
The employee’s act or omission causing the plaintiff's injuries
The employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries

18. Employment relationship and employee’s incompetence
Mary’s firm hired the employee, tells the employee where he/she must work, pays the employee, therefore Mary is considered his/her employer.
In Mary’s case, the plaintiff will have little difficulty demonstrating to the court that the employee’s past record and untruthful job application made him a risk for the position in which he was placed.

19. Employer’s knowledge of employee’s incompetence
Mary escapes liability on this issue, did not know of the felon’s previous criminal record.
Had Mary known and assigned anyway without warning client, criteria would have been met.
This however, does not get Mary off the hook.
The plaintiff will argue that had Mary properly screened this employee, she would have known.

20. Employee’s acts as proximate cause of the injury
Assessing whether or not an employee is the cause of an injury and whether the employer’s negligent hiring or retention of the unfit employee proximately caused the injury are essentially issues for a jury to determine.

21. Effective screening process
Where did Mary go wrong?
How much screening is enough to avoid liability?
The greater the risk, the more effort must be made to investigate a potential employee’s background

22. Conclusion
State and local laws vary with regard to the standard of care necessary to prevent legal problems due to negligence in hiring and retention
Consulting a labor attorney is always in your best interest. With proper legal advice, negligent hiring and retention problems can be avoided
THE COST OF PREVENTION IS AFFORDABLE – THE COST OF NEGLECT MAY NOT BE