There are innumerable sources of liability for employers, with some more salient than others. Negligent hiring and negligent retention are often overlooked but are nonetheless serious concerns for all employers.
Negligent hiring typically refers to the failure of an employer to perform due diligence in hiring new employees, the failure to conduct a thorough professional background screening, or the lack of a rigorous vetting process for employment.
In the case of negligent retention, an employer may be liable for damages if they learned about or should have known about an employee's deficient credentials at some point after hiring, and yet failed to protect others from harm by removing the employee or terminating their employment.
As an employer, it is important to be aware of the many sources of potential liability and to take precautionary measures to protect against a negligent hiring or negligent retention claim. Common examples of business liabilities that require management are the ones you can easily picture in your mind - icy sidewalks requiring salting, or a toaster oven in the common kitchen requiring a nearby fire extinguisher. Yet other liabilities are more subtle, and some may not be top of mind for employers. Employers can, however, effectively work to reduce the likelihood of these lawsuits by implementing appropriate job screening protocols, conducting routine adequate background checks, and performing thorough license verification on an ongoing basis.
Theories of Liability
Respondeat Superior
Employers are generally familiar with the legal concept of respondeat superior, a Latin phrase and legal concept that means it allows an employer to be held responsible for the negligent actions or omissions of an employee working within the scope of their employment.
For example, the owners of a dental practice may be liable for the mistake of a dental hygienist that causes harm or damage to a patient. Under the theory of respondeat superior, even if an employer (i.e. the owner of the dental practice) was acting reasonably at the time of the damage-causing incident, the employer may still be found liable if the damage was caused by an employee, who is working within their job scope.
Negligent Hiring and/or Negligent Retention
Similar to a claim grounded in the theory of respondeat superior, a claim of negligent hiring/retention typically follows from an employee's negligent or intentional action that causes harm to (for example) a customer or patient.
However, an employer is only liable under a theory of negligent hiring/retention if the employer's negligent act or omission was a cause or contributing cause to the employee's actions. Since an employer's own actions are a necessary factor in a negligent hiring/retention claim, these types of claims are less common than those brought under respondeat superior.
For example in a dental accident scenario, if the employer knew, or should have known, that the dental hygienist had a suspended license to practice at the time of the incident in the course of which the dental hygienist injured a patient, the employer may be found liable for negligent hiring/retention.
The best way for employers to protect against these claims is through proper diligence in conducting a background check, screening and vetting candidates, license verifications (prior to the hiring decision and throughout the duration of employment), and ensuring that they are providing adequate training and supervision where needed.
Setting Up a Risk Mitigation Program through Credentialing
As an employer, your first step should be to set up a credentialing program that allows you to effectively screen for and vet candidates before hiring them. Credential Sentry's professional and occupational licensing verification automation tool makes this simple. It can check license status, including on a predetermined schedule, and pull up board certifications and sanctions to verify credentials in real time.
In addition to using automated license verification and credentialing tools, you should also have a process in place for conducting background checks. While the specifics will vary depending on your business, at a minimum, you should consider running criminal background checks and sex offender registry searches.
After you have effectively screened and vetted candidates before hiring them, your next step should be to set up a robust onboarding program for new employees. An effective business risk mitigation program will not only provide for salt on icy sidewalks or fire extinguishers located throughout the building but will also guard against potential liability grounded in theories of negligent hiring and negligent retention.
Types of Background Checks to Conduct to Verify Credentials of Your Candidates
Suspended License Background Check
License verification is one of the first things that you should do when vetting candidates. Employers typically conduct a license check to confirm that their candidates possess an active/current license in their home state. It is crucial to check the license of your professional staff on a regular basis (e.g. weekly, monthly, or yearly) to ensure that you are always compliant with the law and that your business or organization is always protected. Using a professional license verification tool such as Credential Sentry, you can receive notifications to immediately learn if a license has been suspended or is still valid. An automated screening process can drastically reduce the likelihood of negligent retention claims.
Criminal Background Checks
The purpose of criminal background checks is to determine whether or not a person has a criminal record or is wanted for a crime. In some instances, these checks will evaluate the credit score and history of an individual. The background checks can be used to determine whether an applicant poses a threat to the safety of others.
Sex Offender Registry Search
A search of the sex offender registry is intended to examine whether an individual has been convicted of a sex-related offense. Among these crimes are rape, sexual assault, child molestation, and more. This type of check is important to conduct if you are hiring someone who will be working with children or vulnerable adults.
Educational Background Check
School records can tell you about a person's education and other important information such as if they've ever been suspended or expelled. If you're considering hiring someone for work that requires certain educational credentials, this is especially important to know during the hiring process. There are also certain job types where having ever been suspended, expelled or having dropped out of school could be a cause for concern.
Employment History
Employer verifications allow you to see someone's employment history so you can make sure they match what they've told you on their resume or application. You might find discrepancies in dates worked and job titles which could be a red flag regarding the integrity and honesty of an applicant or employee in question.
Protect Your Business from Negligent Hiring and Retention Liability
Credential Sentry's automatic license verification enables hiring managers and employers to obtain periodic real-time updates on the status of their employees' licenses and to determine the professional license status of as many individuals as needed. Credential Sentry is a popular option for businesses seeking to avoid negligent hiring lawsuits on account of these features. In addition, it saves businesses a substantial amount of time, money, and effort in protecting their brand, employees, and customers. Credentialsentry.com provides a free demo; sign in to try it out for yourself.
