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.
Apart from the negative financial cost, negligent hiring and vicarious liability lawsuits impact the reputation of a brand, organisation. In my essay: ‘’Staggering Fake Certificates, Fraud In Nigeria Demands Stringent Background Checks’’, I buttressed the need for holistic security background checks in Nigeria.

What is Negligent Hiring, Vicarious Liability?
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 checks. 
credit: Lowerriskgroup

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.  

Potential Negligent Hiring, Vicarious Liability Lawsuits
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? Industry Facts
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:

v False 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.

v Workplace 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.

v Substance (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.

v Employee 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.

Written By:

© Don Okereke
(Security Consultant/Analyst, Writer)

Twitter: @DonOkereke

Phone number: +234 708 000 8285