My Employee Did Something Bad; Am I Responsible for Being Negligent!?!

02.04.21Baylee Olsen

My Employee Did Something Bad; Am I Responsible for Being Negligent!?!

Have you gone through what you thought was a thorough hiring process only to later discover the person you hired inflicted physical or mental harm to one of your other employees or your customers?

In these situations, many employers are surprised to learn they can be held liable for ‘negligent hiring or retention’ if one of their employees has a problematic background they knew or should have known about if they had only done a reasonable investigation into the applicant’s background.

Many employers assume by doing a criminal background screening this will prevent these issues. However, studies have shown applicants without a criminal background record are just as likely to engage in misconduct at work than someone with a record. So, while conducting a criminal background screening is a good practice, it is not enough to ensure an applicant will not become a negligent hiring or retention headache down the road.

To make matters more complicated, federal discrimination laws and many states with Ban The Box laws limit when and what an employer can do in regards to inquiries into an applicant’s criminal and background history.

To avoid such issues, the first step is to ensure due diligence in the recruiting and hiring process for your future employees. This includes the following:

  • Focus on recruiting sources such as job posting boards and recruiting agencies that will bring in the types of candidates you need. This includes being able to ensure the candidates you consider meet not only the qualifications for the job but are also a good fit for your company culture and organizational structure.
  • Train your managers on proper interviewing techniques including how to follow a consistent process. They should understand the importance of properly using Behavioral Interviewing Questions to gather the most useful information about an applicant and how they have behaved in prior situations.
  • Review your Employment Application to ensure it complies with federal and state laws including Ban The Box laws.
  • Ensure you are using a legally compliant criminal background screening process.
  • Checking references on every applicant can be daunting, however, it is a huge part of avoiding negligent hiring claims and ensuring you have the best employees for your organization.
  • Do you also need to check an applicant’s driving record and perform a drug screen? This may depend on the job position the employee will hold and the essential functions of that job but could be an important part of the hiring process.

Even after following the thorough processes outlined above, your liability for negligent hiring does not stop there. It could turn into a negligent retention situation if you later find out your employee has a problematic background that was somehow missed during the hiring process or the employee engages in misconduct but is not held accountable for their behavior.

It is important to practice good performance management and engage in a solid disciplinary process to avoid negligent retention liability down the road. Keep these pointers in mind when managing performance issues in your organization:

  • Maintain updated policies and procedures in an Employee Handbook so the expectations of workplace behavior and performance are clear to your employees.
  • Should a claim of misconduct be reported, including anything related to harassment and/or abusive conduct, the company is required to do a prompt and thorough investigation to determine the appropriate action that needs to be taken. Details of what happened and the appropriate action necessary can be difficult to determine. An objective outside consultant can assist with a thorough investigation and recommend appropriate action to remedy the situation and avoid problems in the future.
  • Review your performance management process to ensure it includes regular feedback and correction of unsatisfactory performance issues before they become a bigger problem that will be more difficult to rein in.
  • Train your managers on a performance management process that empowers them to hold employees accountable while also building strong positive working relationships.
  • Need to terminate an employee? It is helpful to consult with an objective person to ensure you have followed all the proper steps, have solid documentation and will not create more problems for yourself down the road.

How SDHRC Can Help!

This can be overwhelming for many, however, we can help with all your recruiting, hiring, performance management, policies and procedures….well, basically all your HR needs to ensure a smooth-running organization with minimal issues. Let us take the hassle of compliance off your back so you can focus on running your business. After all, your organization is only as good as its employees! 

Our Recruiting Services were created to make recruiting more affordable. Our veteran recruiters take the time to learn what is important to you so they can provide qualified candidates who will strengthen your brand as an employer. They also go the extra mile by guiding you through the due diligence process necessary to avoid claims of negligent hiring and making the best match for your organization.

Our Human Resources Team can support your efforts to maintain a well-run organization by providing comprehensive services such as customized Employee Handbooks, complaint policies and procedures, guidance on conducting legal investigations, providing disciplinary processes and documentation, and training for managers and employees on topics such as preventing harassment and abusive conduct, team building, legally compliant interviewing and coaching for accountability.


About the Author

Traci Hagan, “Treasure Trove”

Traci is an HR Consultant who has been with SDHRC for over 2 years but has over 32 years of experience in employee relations, conflict resolution benefits administration, training and development, workers’ comp and staffing! Traci is also a Professor who enjoys traveling and spending time with her 16-year-old “puppy”.