Last Updated on December 21, 2022

Negligence Claims From Employees Regarding Employment

As we enter into 2022, there continues to be a rush of hiring to fill positions that have been vacant throughout the pandemic. It’s been hard to find employees, and also to retain employees. We understand the need for staffing quickly, however, rushing through the hiring process can be risky. As you hire, be sure to go through the proper channels for hiring and perform proper and accurate employee screening to ensure that you know who you are investing in.

Negligent hiring and also negligent retention can create a legal nightmare. In this article, we will walk through these scenarios so that you can screen and hire with confidence.

What are Negligence Claims?

Negligence, in regards to employment, is a claim brought by an individual seeking to hold an employer liable for the damages (injury) caused by an employee. The elements for establishing a negligence claim in employment are basically the same as for a standard negligence claim. 

In the employment context, negligence actions can generally be broken down into four categories:

• Negligent hiring
• Negligent retention
• Negligent supervision
• Negligent training

In this article, we will focus on negligent hiring and negligent retention.

Negligence Claims for Hiring in the Workplace

Employers have a duty to use reasonable care when hiring employees to ensure that they do not hire individuals who may pose a threat of injury to fellow employees, members of the public, or the workplace in general. In many cases, negligent hiring claims stem from acts of violence and sexual assault against co-workers.

When an employer fails to conduct an adequate pre-employment investigation — including, as circumstances warrant, reference checks, post-employment verifications, credit checks, and criminal record checks — that employer risks the potential for negligent hiring liability for injuries caused by a disruptive or violent employee to third parties, such as customers, clients, suppliers, visitors, or others, as well as other employees. Working with a reputable employee screening company is the best way to ensure that you avoid hiring surprises.

How to Avoid Negligent Hiring Claims

To help avoid negligent hiring claims, employers should:

• Verify an applicant’s work history and other information on their resumé.
• Attempt to obtain reference information from former employers.
• Increase the scope of the pre-employment investigation when hiring for positions where there is greater risk of harm to the public or to fellow employees.
• Consider criminal record checks in compliance with all applicable state and federal laws. Although some costs are involved, they are insignificant when compared to the potential liability for negligent hiring.
• Document all pre-employment investigatory efforts, including nonproductive contacts with former employers.
• Use effective interviewing techniques. During interviews employers should ask probing questions regarding missing or questionable information.

Negligent Retention Risks

The risks of negligence don’t stop with new hires. Negligent retention is a similar claim to negligent hiring. Negligent retention differs from negligent hiring only with respect to when an employer learns, or should have learned, about an employee’s lack of suitability for the job. In negligent retention claims, the failure occurs when an employer continues to retain an unsuitable employee. Failing to take action against an employee known or suspected to pose a risk of harm to co-workers, customers, and others can expose an employer to liability for actual injuries, pain, suffering, and even punitive damages.

As the pandemic continues, worrying statistics about the pandemic’s effects on substance abuse and mental health are emerging:

• According to the Centers for Disease Control and Prevention, 40% of U.S. adults reported struggling with mental health or substance abuse during late June 2020.
• Millennium Health, a national lab service, analyzed 500,000 urine drug tests from mid-March through May of this year and found:
  • A 32% increase in tests for non-prescribed fentanyl.
  • A 20% increase in tests for methamphetamine.
  • A 10% increase in tests for cocaine.
  • Alcohol sales have grown by 27% since March 7, 2020.
  • There was an 18% increase in suspected drug overdoses from mid-March through May of this year.
  • The National Institute of Environmental Health Sciences reported a 1,000% increase in emotional distress reported to emergency hotlines during the pandemic.
  • According to the American Medical Association, more than 35 states have reported increases in opioid-related deaths so far in 2020.
  • This data shows that people from all over the country are struggling to cope with these uncertain times. This means that many people are having a tough time.

Avoid Negligence With Ongoing Employee Monitoring

It is important to keep an eye on employees and consider ongoing monitoring as part of your business practice, In some industries such as manufacturing, ongoing drug testing can be a crucial component to maintaining high safety standards. This is especially true for those candidates who will be operating heavy machinery, dangerous equipment, or handling toxic chemicals. This can make a difference in your safety and success as a business.

For detailed questions about employee screening, let MyHRScreens help. Contact klewis@myhrscreens.com today to ask questions or set up an appointment.

For more information regarding COVID/HR policies during the COVID-19 crisis or assistance with other HR needs, contact MyHRConcierge at 1-855-538-6947 x.108 or email ccooley@myhrconcierge.com.