Negligent Hiring: An Employer’s Duty to Protect Everyone

An employer has a duty to protect its employees, customers, clients, and visitors from injury caused by their employees who the employer knows, or should know, pose a risk of harm to others. When an employer violates that duty, it may be liable for damages under the tort of negligent hiring, negligent retention, or negligent supervision. Balanced against the state and federal provisions protecting employee privacy are the increasing demands upon employers to be responsible for the actions of their employees. Current case law establishes that an employer has a duty to exercise reasonable care in hiring persons who, because of the nature of the employment, could present a threat of injury to members of the public.

In a recent case, a nursing home named Manor Park hired a janitor who, as it turns out, was using a different name and a fictitious date of birth and Social Security number. Consequently, Manor Park discovered that the person it hired had five prior felonies on his record only after he had raped an 84-year-old nursing home resident suffering from Alzheimer’s. The victim’s family sued, contending Manor Park was negligent in its hiring practices, starting with its failure to detect that the janitor applied for a job under a false identity. A jury agreed and awarded $1.1 million in damages.

According to the attorney who represented the rape victim’s family, Manor Park’s human resources department ran a criminal background check on the janitor, but because he was using a false Social Security number, his criminal record didn’t turn up. The attorney argued that Manor Park’s HR department overlooked many critical prehire steps and red flags that should have triggered closer scrutiny of the applicant.

1. Carefully check a picture ID and complete INS forms. Manor Park didn’t obtain all of the documentation required for the INS I-9 form. Each time company officials asked the janitor for a driver’s license or other picture ID, he said he would bring it later, but he never did. 

2. Verify the accuracy of Social Security numbers. The Social Security Administration operates a free verification service that employers can use to confirm a prospective employee’s Social Security number. You can check up to five numbers at once by calling (800) 772-6270 (make sure you have the employee’s date of birth, as well as your Employer ID Number when you make the call).

3. Ask about every gap in employment history. Breaks in the janitor’s employment history should have raised questions that could have led the nursing home to discover he had served several prison terms. 

4. Carefully check references. The HR staff didn’t talk to any of the janitor’s work references or check his personal references. 

5. Question educational records. Had Manor Park checked, it would have found that the college the janitor claimed to have attended had no record of him under his assumed name. Although he was applying for a janitorial job, he claimed to be a college graduate, which should have led to inquiries about his educational background. 

CONCLUSION: When employers feel the pressure to hire any candidate that appears qualified right when they walk through the door they incur substantial risks. However, this case illustrates the importance of taking the time to check every aspect of an applicant’s background. Even if you hire a vendor to perform these critical steps, you must verify that they are taking all the steps necessary for a proper background check.

This article is a general overview of the subject matter and is not meant to provide professional opinions regarding any specific case, matter, or set of facts, or to substitute for professional advice. Please contact Susan S. Waag, Esq. or an employment lawyer for additional information.

© 1992 - 2005 Bearak Reports, Inc.  All rights reserved. 
Bearak Reports -- 1257 Worcester Road -- Suite 308
Framingham, MA 01701