Human Resources : Negligent Hiring – Essay Example
Negligent Hiring and Employer Liability: Current Trend Analysis Ron Steele XYZ Sandley Vacuum Sales hires a Ms. Akins as a door-to-door salesperson. Ms. Akins has a bad habit of committing acts of physical violence against people who displease her. In fact, she has been convicted of battery nearly a dozen times. On her first day of employment with Sandley Vacuum Sales, she beats up three prospective customers who decline to purchase her wares. All three sue Sandley. Do they have a viable cause of action? What additional facts would change your response?
Yes, the plaintiffs would have a good chance of success in a lawsuit against Sandley Vacuum Sales Company in this case. In the past, the employer may have not been as likely as to be held liable. Until recently, the long held doctrine of respondeat superior was held to be the legal doctrine where the employer would not be held liable if the employee was acting outside his or her predefined job duties. (Twomey, 1994).
Twomey (1994) presents a relevant example of respondeat superior in Rubin v. Yellow Cab Company. In that case, a taxi driver became upset with another car driven by Neil Rubin. The taxi driver got out of his taxi and struck Rubin with a metal pipe. Rubin sued Yellow Cab Company, but was not successful in the lawsuit since under the respondeat superior doctrine, the taxi driver was acting outside his predefined duties as a cab driver. The court mentioned how the attack on Rubin was not conduct associated with driving a cab, so Yellow Cab could not be held liable (Twomey, 1994).
Under new laws, employers can be liable in instances where an employee commits a crime against the public in which the employer should have known of past criminal records, such as in the Sandley case (Twomey, 1994).
Twomey (1994) presents an example of this in Harrison v. Tallahassee Furniture Company. A furniture store delivery person attacked a customer in her home while delivering furniture. The Court applied the more recent ‘theory of negligent hiring’ and found that the employer breached a duty to its customers by not investigating the employee’s past background, which included past violent criminal acts (Twomey, 1994).
It appears that in the Sandley Vacuum case the Court would most likely hold Sandley liable for not performing background checks. Given frequent contact with customers, such as Ms. Atkins had in her sales job, the excessive number of battery convictions should have probably excluded her from the position.
Facts that might change the case would be if Ms. Atkins gave the employer false or misleading information on a job application. In that case, Ms. Atkins would be liable for providing false information. Another fact that might change Sandley Vacuum from being liable is if Ms. Atkins performed a different job with the company that did not involve working closely with people in a high pressure sales position.
What is negligent hiring and what is the basis and extent of liability imposed on the employer? Do you think this is fair? Why or why not? Can you think of a scenario where it would NOT be fair to the employee?
According to Twomey (1994), negligent hiring is where an employer does not fulfill duties related to the hiring process such as having an employee fill out and sign a job application or conducting a job interview with the potential employee. Also included in the employer’s responsibilities would be checking past personal references and job references which could help determine the risk an employee poses to others (Twomey, 1994).
Twomey (1994) further states that the theory in which an employer should be able to reasonably foresee potential injury to a third party due to the nature of the job being applied for (Twomey, 1994). Finally, the pre-employment investigation should be proportional to the potential injury that could occur to others. Jobs with little to no customer contact would require less diligence by the employer than those where an employee comes in frequent contact with customers (Twomey, 1994).
The new doctrine of the ‘theory of negligent hiring’ seems fair, or at least fairer than the prior respondeat superior doctrine as earlier discussed. Employers can easily and inexpensively do reasonable background checking. To hire someone with a long list of prior battery convictions to interact with the public in a high pressure sales job does not seem to be fair to the customer or even the employee. The risk is too high that volatile emotions could provoke past history of the employee to repeat itself.
A scenario where it might not be fair to the employee would be in cases where the employee is no longer a threat to others, but still has negative information regarding his or her past on official record that cannot be erased. One example might be with an alcoholic who committed one felony crime while still under the effect of active and untreated alcoholism. However, he or she may have entered recovery programs and have many years of sobriety and poses no heightened risk to others at present. Yet, the past criminal act could prevent the person from ever obtaining certain employment positions.
Twomey, D. (1994). Employer Liability for the Torts of Employees: The Developing Law of
Negligent Hiring and Retention. Business Law Review, 27(1), 125-132.