Employer Liability for Negligent Hiring

Published September 9, 2013 by Mayrbear's Lair

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Smart business leaders have a firm grasp of comprehending the law and recognizing its limitations when it comes to operating a business. Walsh (2013) explains that, “No single set of employment law covers all workers” (Walsh, 2013). In fact, employment laws consists of a variety of federal, state, and local laws that are contingent upon such things like: (a) whether the individual is a government employee, (b) whether the individual works in the private sector, (c) the size of their company or (d) whether they have any union affiliation. In addition, employment laws are ever changing, as new employment laws are created and old ones are reinterpreted.

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To better understand these laws, we will examine a case study of a scenario involving  a 17 year old plaintiff that seeks damages as a result of being violently assaulted by an employee of the defendant, XYZ Motor Freight Inc. When XYZ hired the employee that committed the assault, they questioned the individual with respect to prior vehicular offenses and criminal convictions. However, due to their position on EEOC discrimination statutes, XYZ only chose to verify his vehicular offenses and ignored his negative response to the criminal convictions inquiry. Rassas (2011) suggests that employers who have a working knowledge of labor law and the obligations of employers can help them avoid litigious events such as this. A lack of knowledge can unintentionally result in a failure to abide by a law and impact the operation of an organization significantly (Rassas, 2011). For example, employment laws have been established to protect both employees and employers by imposing certain responsibilities. For employees, employment at will is a default rule that permit employers to terminate employees without having a good reason. This means the employee has the freedom to engage in collective bargaining with their employers. In addition, according to employment laws, each relationship is subject to the terms and conditions of employment that meet minimum required standards. However, in today’s society the most effective and successful people, whether employer or employee, should also take responsibility and accountability to ensure their own safety as well as those of others.

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XYZ’s position is that it did not seek to verify the criminal background check citing they had no duty to do so because of a lack of foreseeability. They further defended their position stating that to impose such a duty would be against public policy and place too great a burden on them. However, in this case, failing to do so created another burden for them. Seaquist (2012) purports that when an employee is working within the scope of their employment, the employer will be liable to third parties for the torts of their workers under the doctrine of respondent superior (Seaquist, 2012). The plaintiff in this case seeks justice arguing that the employer should have been cognizant that the employee they hired was dangerous because he had a history and a record of violent sex related crimes when they hired him. In other words, by not checking his criminal background they created a dangerous condition by putting him in a situation in which he was able to bring harm to others because they failed to verify his criminal record.

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Both sides have very effective defenses to support their position. XYZ claims they did not verify the criminal background check because they were acting in accordance with EEOC discrimination law issues. However, because the employee was hired to participate in interstate commerce, it is their responsibility to make sure the individual performs their duties to best of their ability and trust they will not engage in misconduct or inappropriate behavior. In my view, if I were a business leader for XYZ, I would be concerned about the damages from the negative publicity alone that a case like this attracts. That is reason enough to engage in thorough employee investigations scrutinizing criminal backgrounds a little closer because of the nature of the trucking industry. As a part of the legal counsel for XYZ, I would suggest a settlement to keep the matter private to preserve the organization’s reputation, and take responsibility for their employee’s ethical misconduct by paying any and all damages to the plaintiff as an act of good faith that supports an ethical corporate climate.

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The plaintiff is in her right to seek damages for being so horrifically violated. However, the jury must decide on whether or not XYZ was responsible for negligence because they were acting in accordance with EEOC mandates with respect to the background check issue. Unfortunately, in a life changing situation as this, hopefully both parties learned some valuable life lessons from this experience. The defendant can begin to take more effective methods to insure the competence of their employees, and the plaintiff came to understand, that although an individual may represent an organization, that does not mean the individual is free of behavior from criminal or ethical misconduct. The moral of the story: never, ever, accept a ride from a stranger. The movie Hitchhiker was a good reminder as to why.

References:

Rassas, L. (2011). Employment law: a guide to hiring, managing, and firing employers and employees. New York, NY: Aspen Publishers.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Walsh, D. (2013). Employment law for human resource practice. Mason, OH: Cengage Learning.

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