Here is a riddle for you. What do you call an employer who does not exercise due diligence when making hiring decisions? The answer is: that employer is called a defendant because he will likely be sued for failure to perform a legal duty. That’s an important issue and it is important for employers to remember that negligent hiring is the other side of due diligence. We will spend some time in upcoming posts discussing due diligence but today we are going to focus on negligent hiring. Negligent hiring takes place when an employer hires someone who they knew or using due diligence should have known was too dangerous, too unfit or too unqualified for the position and that employee harms another person, be it another employee or a customer or just someone who is part of the genera l public.
That is a dangerous spot for an employer to be in because employers lose negligent hiring cases 79% of the time and the average judgment against the employer is in excess of $1,000,000. These cases are so hard to defend because jurors will often find that the employer, if they exercised a little due diligence could have found about the specific problem with the employee and to many jurors that translates to the fact that the employer should have known about the problem; and there goes a million hard earned dollars.
Let’s look at an example. Consider the tragic case of one Mr. Jesse Rogers. A health care firm in Massachusetts hired Mr. Rogers, without performing a background check, and assigned him the job of taking care of a 32 year old paraplegic and his 77 year old Grandmother. About a month after he was hired he was fired for demonstrating a pattern of failing to show up for work. Mr. Rogers showed his displeasure by murdering the two people he had been assigned to care for. A jury found that the health care firm was guilty of negligent hiring awarded the family of the murder victims a staggering $26,000,000. This is an example of what can happen when an employer fails to use due diligence in making a hiring decision. Just think how easy it would have been for the employer to contact a professionally managed background checking firm. Had they done that they would have found that Mr. Rogers had recently been released from prison and would have made the decision not to hire him.
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