Definitions

Negligent Hiring Defined

Negligent hiring refers to employers who fail to exercise reasonable care not to hire an applicant that they know or should have known was likely to undertake injurious conduct against others or otherwise subject co-workers or third parties to actions which can create legal liability.

Negligent Retention

Negligent retention is the breach of the employer’s duty to be reasonably aware of a current employee’s unfitness for a position and to act on that awareness by taking corrective action through retraining, reassignment or discharge. Problems of this nature can arise when an employee is reassigned, takes on additional responsibilities or has greater contact with people than they did in the previous position. One way to avoid allegations of negligent retention is to conduct annual updates of criminal records, driving records or other potentially relevant checks.

Duty of Care

To avoid allegations of negligent hiring or negligent retention, employers should exercise reasonable care in hiring and retaining individuals who, because of the nature of the employment and amount of contact with other employees, customers or the general public, may pose a threat of injury to individuals.

What is Reasonable Care?

Generally speaking there is no absolute standard that tells an employer what all should be done when conducting a pre-employment background check. The extent to which an employer needs to delve into an applicant's background depends primarily upon the nature of the work to be performed and the reasonableness of conducting relevant checks under the circumstances. Ultimately, it could be a question that a jury might have to decide. Factors that should be considered are the relevancy of making certain inquiries in view of the position to be filled, the availability of information, the costs involved and possibly even issues dealing with the application for employment. For example, if the applicant submits limited information on the application, or otherwise raises reasonable suspicion, the employer could be found to have breached their duty of care if they fail to follow up and make a proper investigation.

Good News For Florida Employers

Florida has taken a major step toward helping employers avoid claims of negligent hiring. In 1999 the State of Florida established statutory guidance (F.S. 768.096)  that if followed by employers, creates a presumption against negligent hiring.

Employers who follow the steps described in the statute will be presumed not to have been negligent if, before hiring the employee, the employer conducted a background investigation which did not reveal information that reasonably demonstrated the unsuitability of the employee for the particular work to be performed or for the employment in general. The steps are:

1. Order a State of Florida criminal record (Department of Law Enforcement information as reflected in the Florida Crime Information Center system);

2. Make a reasonable effort to contact references and contact former employers concerning the suitability of the prospective employee for employment;

3. Require the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including the details, the date of conviction and the penalty imposed and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;

4. Obtaining, with the written authorization of the employee, a check of the driver's license record of the prospective employee, if such check is relevant to the work the employee will be performing and if the record can be reasonably obtained; or