Negligent Hiring and Negligent Retention
Background and pre-employment checks are important for many reasons, but they are extremely important because fraud and identity theft are relatively common today. Although an employer may be duped by a slick communicator with an even slicker resume, she can still be held accountable for the failure to authenticate the identity of her employee. She can be charged with what is usually called negligent hiring and negligent retention.
In other words, it can be charged that she negligently hired an employee if she didn't perform the due diligence required to authenticate that he was, in reality, who he represented himself to be. Furthermore, she can be deemed negligent if she kept this person on the job without performing any periodic checks that would have revealed he was bogus. If he commits an act of violence, she's guilty of negligence. According to the courts, she's been negligent toward the safety of her employees and the public, especially if the applicant has a history of violence or criminal record or any kind.
You may say that this isn't fair. It's not the employer who's done anything wrong. Yet in the eyes of the law, she has. The standards that exist to prove negligence are:
Whether a remedy (background check) is known to be a remedy
Whether a remedy is available (background checks are widely available)
Whether she knew of the remedy and its availability (business owners are assumed to know)
Whether she made any effort to apply the remedy (did she commission a background/pre-employment check on this individual?)
Whether she's used this remedy on other applicants in the past
This employer can be charged with negligent hiring and retention. Negligent hiring theory is the basis on which claims such as this are brought. This theory argues that it doesn't matter that the employer didn't know of the applicant's past violent history; what matters is that she could have known because it was easily discoverable through a background check. It also maintains that she should have known. She should have expended the time and effort to use available resources to uncover his history.
Background/pre-employment checks uncover those who lie about their backgrounds and qualifications and those with criminal histories or other problems. Too many people think that a good background result indicates that an employee can be trusted. That's taking the power of the database search way too far. It's important to realize that just because someone passes a background check with flying colors, doesn't mean they haven't committed crimes in the past and just weren't caught. Nor does it mean they won't commit a crime in the future. Encourage your clients to be vigilant in supervising employees, even when the background check has revealed no past problems.
Perform background checks on anyone with access to your home and family. This includes housekeepers, nannies, maintenance workers, landscapers, and anyone who will work on the house, such as painters or contractors. Be sure that any company you hire for work such as carpet cleaning or appliance repair has supplied bonded employees. Again, being bonded or passing a background check doesn't place a halo around the employee's head, so don't be presumptuous about the level of anyone's trustworthiness. For comprehensive background/pre-employment checks (and other services) see:
