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Friday, 23 December 2016
Background Check: Antidote To Negligent Hiring, Vicarious Liability
Image credit: BackgroundRecords
Holistic Security Background Checks is a global best practice and first
line of defence against latent risks of negligent hiring and vicarious
liability which employers of labour increasingly face in our today’s world. Whether
they bargained for it or not, the very moment an employee is hired, an employer
inherits an invincible burden – a reasonable duty of care for the security and safety
of others. The crux of negligent hiring lawsuit is that a hiring decision (lack
of due diligence or background check) by an employer resulted or contributed to
the incident. A growing number of organizations fall prey to negligent hiring
and vicarious liability lawsuits. To give us an idea, ‘’about 75% of employers reportedly lose negligent hiring cases with settlement claims averaging $1
million’’. A jury in an Arkansas Federal
Court in the United States awarded $7 million in damages to the family of an Arkansas truck driver
killed in a 2008 accident in a wrongful death lawsuit brought against a timber
company and its truck driver who caused the accident.
Negligent hiring is a claim made by an injured party against
an employer based on the notion that the employer knew or should have known
about the employee's background which, if known, portends a dangerous or
untrustworthy character. In the light of this, an employer is responsible for, and can be held accountable
for checking the background and references of job applicants before placing
him/her in a position of high public contact.In
other words, negligent hiring is the flip side of due diligence or background
Similar to the tort of negligent hiring is vicarious liability which refers
to a situation where someone or an organization is held responsible for the
actions or omissions of another person. In a workplace context, an employer can
be liable for the acts or omissions of its employees provided it can
be shown that such actions took place in the course of their employment. Vicarious
liability is founded on a legal construct called “respondent superior,” which means
that an employer is responsible for the deed its employees committed in the
line of work. In this case a plaintiff does not necessarily have to
prove that the employer was negligent in hiring but to prove that the employee
was negligent while working for the employer.
What Is a Background Check?
A background check is the process of verifying information
provided to a prospective employer by an applicant in his or her resume,
application form, or during interviews. A holistic security background check process
is quite vast. It could be in the form of ascertaining identity, competence (possibly
a written test to confirm skills or knowledge), academic qualifications, reference
or guarantor, employment verification (dates of employment, positions,
responsibilities etc.), driving record (for driving related jobs), criminal
conviction (not mere arrests), drug and alcohol tests (to establish applicant(s)
with substance abuse or alcohol problems), credit check (especially for finance
or account professionals), amongst others.
Background checks must be fair, nondiscriminatory such that candidates
for the same job position should undergo same screening. Some jurisdictions prohibit
inclusion of criminal records exceeding 7 years from been included on a
background check report.
Where an employee rapes a coworker or a teacher sexually molests
his/her pupil/student and an investigation reveals that the employee is a
registered sex offender previously jailed for sexual assault. Where an
accountant who has prior conviction for fraud is hired and the accountant commits
fraud. A similar scenario is where a truck driver with a revoked driver license
is hired without background checks and he’s subsequently enmeshed in a fatal road
accident. A negligent hiring and/or vicarious liability lawsuits can be brought
against employers of such culprits because holistic security background checks
would have unveiled such tendency.
It’s not always about employees with previous criminal convictions.
Negligent hiring and vicarious liability lawsuits can be brought against an
employer if the employee forged academic credentials, misrepresented himself or
stole somebody’s identity and subsequently fails in his/her job. For instance,
a negligent hiring, vicarious liability legal action can be brought against an
employer for hiring a fake medical practitioner (medical doctor, nurse,
pharmacist etc.) if the bogus health professional harms someone in the course
of his/her job.
Why Background Checks?
One of the most important decision and investment a business or an
organization will make is to hire the right workforce. Conversely, hiring incompetent
candidates or those with serious criminal backgrounds could spell doom for an
employer. Hiring managers must not rely on “gut instinct" but rather adopt
global best practice by carrying out holistic security background checks on
prospective staff. Twenty-nine percent of survey respondents said background checks helped to mitigate negligent hiring risks.
Other advantages of background checks include: improved workplace safety and improved
quality of staff recruited. The following information culled from HireRight further buttresses the importance of background checks:
vFalse Information: 53% of all job applications contain inaccurate information. 49%
of the 3,100 hiring managers surveyed had caught a job applicant fabricating
some part of his/her resume. 34% of all application forms contain outright lies
about experience, education, and ability to perform essential functions on the
job. 9% of job applicants falsely claimed they had a college degree, listed
false employers, or identified jobs that didn't exist. 11% of job applicants
misrepresented why they left a former employer.Nearly one-third of job applications listed dates of
employment that were inaccurate by more than three months.
vWorkplace Violence: The most common effects of workplace violence incidents on
employees include decreased morale, decreased sense of safety, decreased
productivity, decreased trust among co-workers and increased stress and
depression. 13% of the 5,840 workplace fatalities that happened in the US in 2006
were the result of assaults and violent acts.
vSubstance (Drug) Abuse: More than 75% of substance abusers are employed. Substance
abusers change jobs as frequently as 3 times a year. They are 2.5 times more
likely to be absent 8+ days a year. Just recently, the Nigerian Civil Aviation
Authority, NCAA Suspended 5 cabin crew for testing
positive to marijuana.
vEmployee Theft: In 2008, the majority of retail shrinkage was due to employee
theft at $15.9 billion, which represented almost half of losses (44%).In 2007, one in every 28.2 employees was apprehended for
theft from their employer.The FBI calls
employee theft the fastest growing crime in America. 55% of perpetrators of
employee theft are managers.
From the foregoing, an employer can be likened to a sitting duck
for negligent hiring or vicarious liability lawsuits with potentially huge
financial losses and damage to the brand if the employer doesn’t carry out
holistic security background checks.