Avoid Negligent Hiring Lawsuits with Proper Screening & Documentation

Legal Aspects of Avoiding andLegal Aspects of Avoiding and
Defending Negligent HiringDefending Negligent Hiring
Presentation-Presentation- By, Richard GarrityBy, Richard Garrity

Legal Definitions/ Prior Case
Law illustrated
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Your building and your valued employees areYour building and your valued employees are
the lifeline to a successful business entity.the lifeline to a successful business entity.
So would you really hire just anybody?So would you really hire just anybody?

Negligent Hiring- Negligent RetentionNegligent Hiring- Negligent Retention
“Weeding out the bad seeds”“Weeding out the bad seeds”

Additional Tips and Guidance onAdditional Tips and Guidance on
dealing with problematic employeesdealing with problematic employees

If you can foresee it, you
can prevent it!
~Some of the perils we face in the business world~

Overview of Presentation:
Negligence
Negligent Hiring
Negligent Retention
Documentation
 Illegal Interview Questions
Managing problematic employees
MA. CORI Procedures

Legal Definitions:
Vicarious Liability- is an employer's legal
responsibility for discrimination,
harassment, and other forms of
unacceptable actions which occurs in the
workplace or in connection with a person's
employment. The employer is legally
responsible unless it can be shown that
'reasonable steps' have been made to
reduce this liability.

Legal Definitions:
Intentional Tort- An act done with
purpose, with knowledge, with a reckless
disregard of result or with the gross
disregard of the safety of others…Refers
to deliberate acts which cause injury.
Respondeat- The person against whom
an appeal is taken.

Legal Definitions:
At-will Employment- is a doctrine of American law that
defines an employment relationship in which either party
can break the relationship with no liability, provided there
was no express contract for a definite term governing the
employment relationship. Any hiring is presumed to be "at
will"; that is, the employer is free to discharge individuals
"for good cause, or bad cause, or no cause at all," and the
employee is equally free to quit, strike, or otherwise cease
work. However, the standard 2 week notice is always a
prudent choice when leaving a job.

Legal Definitions (2):
At-will Employment- Several exceptions to the doctrine
exist, especially if unlawful discrimination is involved
regarding the termination of an employee. "At-will
employment" also does not by itself make terminated
employees ineligible for unemployment claims and
compensation if they are terminated without cause. Union
employees can be discharged as At-Will personnel as well.
However, abiding by current or standard disciplinary
guidelines set forth by union-client doctrine should always
be adhered to absent very serious employee misconduct.

Negligence:
Negligence: is either the failure to
do something that an ordinarily
prudent person would do under
given circumstances or the doing
of something that an ordinarily
prudent person would not do under
those circumstances.

Legal Definitions:
Negligent Hiring: The failure to use
reasonable care in the employee selection
process, resulting in harm caused to
others. Employers have a legal duty not to
hire people who could pose a threat of
harm to others, which can include
everything from slight to fatal bodily injury,
theft, arson, or property damage.

Legal Definitions:
The core definition of
“reasonable care”
depends on the degree of the risk
of harm to other employees and
people. The greater the risk, the
higher the standard of care
required.

Negligent Hiring:
Duty Defined:
An employer has duty to use
“reasonable care” to select
employees and contractors:
who are safe and competent
Have proven previous experience

Negligent Hiring:
who do not have "violent
propensities",
e.g., prior criminal record
whose background investigation
checks out and or, is acceptable.

Negligent Hiring:
As a result of negligent hiring, a company
can be sued if an employee injures or harms
another employee, especially if the
company could have foreseen a problem
but did not do a thorough check of the new
employee before hiring. According to a 2005
report by Public Personnel Management,
employers have lost more than 79 percent
of negligent hiring cases.

Negligent Hiring:
In a 2008 report released by the U.S. Bureau of
Labor Statistics, 13 percent of the 5,840 workplace
fatalities that happened in 2006 were the result of
assaults and violent acts. And a recent article
released by Human Resources Management noted
the average settlement of a negligent hiring
lawsuit is nearly $1 million. In the event that
employment background checks were not
conducted, the employers in those cases could be
held liable for the incidents.

Negligent Hiring:
While many negligent hiring claims
involve drastic but isolated incidents of
employee violent conduct, the risk of being
a defendant against such claims and the
damaging consequences surrounding them
far outweigh the time and cost of taking the
steps to prevent them. As a general rule, a
company's first line of defense is to
eliminate high-risk applicants before
making hiring decisions.

Employment Reference Checks:
Have It In Writing:
By Mail
By Telephone.
Document It! Document It!
Document It!
“If it isn’t in writing, it didn’t
happen!”

Criminal Background Checks:
Submit an official state CORI Form
All applications for CORI certification
must be submitted through
the Department of Criminal Justice
Information Services Online Certification
Application (OCA) (effective September
2nd 2008)
Maintain The Documents!

Random MA. CORI Info:
Any individual may request a copy of
his/her own CORI criminal report. It is
unlawful to request or require a person to
provide a copy of his or her own CORI
except as authorized by the CHSB, pursuant
to M.G.L. c. 6, § 172
However, all requests for CORI documentation
should come from the employer, and not
submitted by the applicant

Negligent Hiring:
Independent Contractors
Find Out If They Screen Their Employees
Maintain Documentation On Their
Screening Procedures
Maintain Documentation on their
Training programs
Maintain Documentation on their Safety
Awareness

Negligent Hiring Lawsuit #1
FACTS: Security Guard Sets Fire To
Client’s Premises. (Hero Syndrome)
$2.3 Million in Property Loss. No
Injuries.
Security Guard Pleads Guilty to
Arson.
No Warnings. 2nd Day On The Job!!

Civil Lawsuit:
Allegations against company:
Intentional Tort – Respondeat
Superior (Vicarious Liability)
Requires Employee Acting Within Course
& Scope of Employment.
Negligent Hiring
Negligent Retention

Job Application-5
~Reference Checks~

Job Application-6
~Personnel File Checklist~

Job Application-7
~ The completed BOP sheet~

Job Application-8
Work Reference Verification

The Result:
No Liability For Company!
(Summary Judgment Granted)

MUSEUM THEFT
Security Guard at Automotive Museum Allows
“Friends” Inside During Night Shift.
$180,000 Of Audio Equipment Discovered
Stolen from cars, as well as a miniature car.
Security Officer Just Started.
Contract Between Museum and Guard
Company
Requires Warrant Check, On All Guards.

MUSEUM THEFT
• LAPD “Question” Security Officer. (He denies)
• Says “Friends” were his cousins. . doesn’t know
where they live or how to get a hold of them.
• Security Guard Fails Polygraph.
• Security Guard Disappears.
• Museum wants its money.
• No Warning about Guard. 2nd Day at Job.

Employment Reference Check:
NONE WERE DONE.
Personal Reference Checks:
NONE!!

Criminal Background Check:
Outside Company utilized (Good)
“No Records” = (so they were told)
Wrong Spelling
Terrol vs. Terrell
No Documentation (Bad)
“We Wouldn’t Let Him Work If We Didn’t Do One!”

Criminal Background Check:
Los Angeles Police Department
LAPD Records:
Prior Conviction for Grand Theft.
On Probation.
The correct spelling of
name-“Terrell” not “Terrol”

Company’s Remedy:
Sue The Background Check
Company for Indemnity?
Problem: NO RECORD OF
BACKGROUND CHECK REQUEST.
NO DOCUMENTATION.

Employer Negligence:
A furniture company was found
liable for $2.5 million for negligent
hiring and retention of a deliveryman
who savagely attacked a woman
customer in her home. (Tallahassee
Furniture Co., Inc. v. Harrison)

A nursing home was found liable for
$235,000 for the negligent hiring of
an unlicensed nurse with numerous
prior criminal convictions who
assaulted an 80-year-old visitor.
(Deerings West Nursing Center v. Scott)

A vacuum cleaner manufacturer was
found liable for $45,000 because one of
its distributors hired a door-to-door
salesperson with a criminal record who
raped a female customer in her home.
The manufacturer should have required
its distributors to conduct pre-hiring
screening of door-to-door salespersons to
prevent hiring of persons with criminal
histories. (McLean v. Kirby Co.)

Proper documentation means all
the difference during a lawsuit and
or unemployment hearings.

Remember. . .
“If it isn’t in writing,
it didn’t happen.”
Document It! Document It!
Document It!

Was this truly the right thing
to do? Was it professional?

The Taylor Grey Meyer story…
Taylor Meyer, a woman who was rejected
by the San Diego Padres baseball team
over 30 times, snapped back at them
when she received an email from them
inviting her to pay 495 dollars to attend a
“Combine”, or glorified hiring fair, where
they told her she would meet employers
and have a chance at one of 50 jobs they
were looking to fill.

The 31-year-old Southern California resident
with a master’s degree in sports management
had been trying to get a job since December
when she got a letter from the prospective
employer on the job fair.
She sent off her email--which also reflected on
how often she'd been told she wasn't a good fit
for jobs of all kinds with the Padres, even selling
tickets, contrasted with her years of
professional and academic experience--thinking
that would be the end of it.

After careful review I must decline. I
realize I may be burning a bridge here,
but in the spirit of reciprocity, I would like
to extend you a counter-offer to suck my
(explicative). Clearly, I don't have one of
these, so my offer makes about as much
sense as yours. But for the price you're
charging to attend the event, I'm sure I
would have no problem borrowing one.

Except the email went viral. And it's been
largely to Meyer's benefit. Not only has
she received national media attention
and congratulatory emails from all over
the world for being “the voice of the
unemployed educated middle class,”
she’s been offered a slew of job
opportunities and even a few marriage
proposals.

So was Talor Meyer right or
wrong in this situation?

Illegal Interview Questions:
Tips and guidance on asking the “right”
questions” and avoiding the “wrong ones”

Various federal, state, and local laws
regulate the questions a prospective
employer can ask you. An employer’s
questions- on the job application, in the
interview, or during the testing process-
must be related to the job for which you
are applying. For the employer, the focus
must be: “What do I need to know to
decide whether or not this person can
perform the functions of this job?”

Disabilities and Physical Skills
Employers are not allowed to ask you about
any disabilities or test your physical skill
level, other than in a very specific context.
If your disability logically interferes with a
capacity to perform the job, then they may
legally inquire. If job performance would
not be hindered, then it’s unfair and illegal
topic of discussion.

Personal History
You are protected from revealing certain
private, personal facts about your life.
Questions about age, gender, financial
status, and criminal history are generally
prohibited- with certain exceptions. This
especially in respect to public safety and
child supervision positions applied for.

Personal History
Managers, Supervisors, and HR
personnel should be aware of these
guidelines. Your birth date, proving
that you are 18 years of age or older,
maybe requested if they decide to hire
you for a position.

Race, Creed, or Color
In general, you should never ask or confront an
applicant with questions about his/her ethnic or
spiritual heritage during the interview phase. In
the past, this was demonstrated to be the
predominant source of prejudicial hiring practices.
Gender based discrimination now seems to be
more pervasive. But institutional racism really
does still exist in some places. Offhand queries
may conceal a hidden agenda to keep certain
candidates out of the organization. This should
never be practiced, in any shape or form.

Family & Relationship Issues
Most interviewers will shy away from direct
questions about an applicant’s sexual orientation,
marital or parental status, which they should. As
managers and leaders, any type of inquiry
concerning the status of an applicant’s personal
relationship issues is prohibited. That info is
confidential and proprietary on behalf of the
candidate, unless they themselves should
volunteer any information of that nature during
the interview process. Which of course, would still
remain confidential.

Prohibited Questions- Examples
 How old are you?
 When was the last time you thrown in jail?
 Are you really a woman?
 Do you rent or own your home?
 Have you ever declared bankruptcy?
How many times have you been married?
 We were just wondering: Are you Gay?
Do you have dependable child care in place?

Negligent Retention:
When Is Enough, Enough?
At-Will Employment?
Major Policy Violation?
Dangerous Propensities?
Company At Risk If Retained?

Maria D. VS. Westec Corp.
Facts: On September 4th
, 1997, Swedish
citizen Maria D. alleged that she was pulled
over on the PCH by a Westec security patrol
officer pretending to be a CHP police officer.
 He conducted Field Sobriety Tests.
Arrested (detained) her.
Raped her at undisclosed location.

Maria D. VS. Westec Corp.
1. Female- Maria D. called Westec
regarding improper social contact and the
alleged rape allegation.
(Investigation: disciplined for improper
social contact. 3 mos. probation.)
2. Attendance: absent from work.
(Home sick, no phone. No discipline.)

Discipline Record:
3. Found asleep in the patrol vehicle.
Remedy: 2 day suspension.
4. Found asleep in the patrol vehicle.
Remedy :
three day suspension – “final warning.”
5. Attendance: Employee no show at firing
range for required basic qualifications.
1 day suspension.

Discipline Record
6. Unauthorized pull-over and flashing
lights at motorist in January 1997.
1 day suspension, reassigned to
smaller area for policy violations.
7. Attendance: Late for roll call.
Verbal counseling.
8. Attendance: no call / no show
2 day suspension, probation

The Judicial Verdict
Jury/ Appeals Ct. Found No Negligence!
Did not happen in a “vacuum”. (Over 15
month employment period.)
The alleged rape was not within the scope
of the security guard's employment.
Human factors and due consideration.
Company acted reasonably.

Heiner V. K-Mart Corp- March 11, 1995
Customer attacked by store security officer
with a “gang member” appearance
Security official did not identify himself
The attack left the customer, George
Heiner, unable to resume his dentistry career
The incident stemmed from initial
questioning of customer by the S/O

Initial hiring findings and evidence of:
No Loss Control Mgr. to supervise
employee or his appearance
Negligent hiring and training
 Negligent retention and supervision
Vicarious liability for battery as well were
shown as factors that led to assault
Employee’s (Renehan) training
“fell through the cracks”

Initial hiring findings and evidence of:
Customer Service Supv. told K-Mart Mgt.
that Renehan was a "time bomb ready to go
off," and "a lawsuit ready to happen."
Evidence showed that Kmart never
disciplined Renehan for any of his aggressive
confrontations with customers.
Indeed, one month after Renehan attacked
George Heiner, Kmart promoted him to loss
control manager.

The Remedy
On January 23rd
, 1998, the chain
discount store was held liable for
3.8 million dollars in damages to
the injured customer.
( 100 CAL Reporter 2nd
854- CAL Appeal 2000)

Problematic Behaviors:
Despite all our best efforts at
“managing", we have very little
control over other people’s actions,
including the people that work with
or for us. We can inspire, motivate,
guide or threaten them, but the
choice to act in a certain way is
always up to the individual.

Problematic Behaviors (2):
Today’s workplaces are complex
environments – it is a rare occasion
when all employees get on together
and work enthusiastically and
constructively to achieve the goals of
the business. Problem behavior on the
part of employees can erupt for a
variety of reasons.

Recognize that problem behavior
usually has a history:
It usually develops over time and
seldom from a single incident. As a
manager, it is your responsibility to be
alert to the early warning signs and deal
with the underlying causes before the
situation reaches a crisis.

Ask yourself: "Am I partly or wholly
responsible for this behavior?"
You would be surprised how frequently it is
the manager who has created, or at least
contributed to problems of employee
behavior. Having an abrasive style, being
unwilling to listen, and being inattentive to
the nuances of employee behavior are all
factors that contribute to the manager's
need to thoroughly examine what is going on

Don't focus only on the overt
behavior:
When confronted by an angry or upset
employee, it's easy to attack the person and
target their behavior rather than examine
the factors that underlie the behavior. Often,
this takes patience, careful probing, and a
willingness to forgo judgment until you really
understand the situation.

Clarify before your confront:
Chances are, when an issue first surfaces, you will
be given only a fragmentary and partial picture of
the problem. You may have to dig deep to surface
important facts, and talk to others who may be
involved. One safe assumption is that each person
will tend to present the case from his or her
viewpoint, which may or may not be the way it
really is. Discretion and careful fact-finding are
often required to get a true picture.

Plan your strategy:
Start by defining, for yourself,
what changes you would like to
see take place, then, follow this
sequence:
Meet with the person and let
them know that there is a problem
or concern.

Plan your strategy:
State the problem as you
understand it and explain why it is
important that it be resolved.
Gain agreement that you've defined
the problem correctly, and that the
employee understands that it must be
solved

Personnel Management:
Tips and advice in dealing
with problematic and
potentially problematic
employees

Managing difficult employees:
Never be afraid to mange, counsel,
discipline or confront difficult or
problematic employees. Although
professional and prudent conduct is
always expected, one must be
vigilant and face all HR related
problems with confidence and tough
unwavering resolve.

5 Tips to deal with
problematic employees:

1. Don't ignore the problem.
Assuming that the employee provides value
to the company and possesses redeeming
qualities, there are ways to deal with
difficult employees. Most often, managers
will simply ignore problematic staffers.
Managers who live by this rule hope the
problem will just go away; that these people
will somehow turn themselves around or
stop being troublesome. Ignoring the
situation is the wrong solution to what could
likely become a progressive problem.

2. Intervene as soon as possible.
It is important to take action as soon as the negative
behavior pattern becomes evident--when left
untouched, this problem will only escalate.
Occasionally, the difficult employee has no idea that
his behavior is a problem or that others react
negatively to his actions. This is because most people
tend to put up with the annoying behavior and "go
along to get along." At the same time, some
employees just consider it a "job frustration." Just like
some managers, employees want to be liked by
colleagues and subordinates and are therefore
reluctant to speak up when a problem arises.

Ultimately, it is the manager's responsibility to
take the appropriate action to correct the
problem. Whether the concern exists due to
the employee's lack of knowledge of the issue,
lack of feedback or projecting the difficulty
onto someone else, the manager has the
responsibility of addressing and turning
around the predicament. The manager needs
to gather information from employees to
discern the extent of the problem and
personally observe the employee interacting
with customers or vendors.

3. Research the problem personally.
Armed with accurate data and
examples, the manager needs to then
take this person into a conference room
or office--away from others--and calmly
address the issue. To begin, the manager
needs to ask the employee if he is aware
of any ongoing issues to determine if the
difficult person is aware of the problems.

3. Research the problem personally.
If the employee is "unaware," the
manager needs to describe the
unacceptable behavior. The employee
might interrupt to disagree or deny the
existence of any issues. Nevertheless,
the manager needs to continue by giving
clear examples of the unwanted
behavior. The manager also needs to
allow the employee to respond to the
allegations

Once the employee begins to understand that these
negative behaviors are real and experienced by others
in the organization, the manager or someone from
human resources should begin to coach the difficult
employee in displaying more acceptable and
appropriate behaviors. The employee needs time and
practice in "trying on" new, more suitable behaviors.
HR and/or the manager need to provide specific
feedback to this employee on the success or failure of
his efforts in minimizing the negative actions and
implementing ones that are more positive.
4. Help the problematic employee
to get back on track.

If the employee continues to deny his inappropriate
behavior and refuses to try to improve the situation,
the manager needs to place this person on the fast
track towards termination. Often this involves
recording a series of well-documented verbal and
then written feedback about the behavior. Strictly
following company protocol, there should be a period
for the employee to address the questionable
behavior. If this trial period does not result in
improved behavior, then the employee needs to be
terminated.
5. If all else fails, termination
may be necessary.

Sometimes, this is the only option.

Never feed problem employees to the lions
because of inability to address the root causes

Plan a contingency. An “out”.

A prime example of how not to deal with
problematic staff & personnel

A diplomatic professional approach is the way
to manage difficult staff personnel

~Never be afraid to take the
plunge; “Manage and Lead”

LESSONS LEARNED TODAY:
“DOCUMENT IT!
DOCUMENT IT!
DOCUMENT IT!”
“IF IT ISN’T IN WRITING,
IT DIDN’T HAPPEN.”

Reach high for what you aspire

“I never dreamed about the road to success.
I worked for it everyday.” Author unknown.

~Thank you for attending
today’s presentation

Avoid Negligent Hiring Lawsuits with Proper Screening & Documentation

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