ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, September 1, 1996 TAG: 9608300069
SECTION: BUSINESS PAGE: 2 EDITION: METRO
COLUMN: Workplace
DATELINE: CHICAGO
SOURCE: CAROL KLEIMAN CHICAGO TRIBUNE
The issue of ``negligent hiring'' is becoming hotly debated.
Negligent hiring is a legal theory that says an employer can be held liable if it fails to take ``reasonable'' precautions to ensure that employees won't harm a co-worker.
Negligent hiring cases ``demonstrate that an employer must fulfill its obligations to existing employees and the public when hiring a new employee by investigating the new employee's background, integrity and job qualifications,'' writes Roy Ginsburg in The National Law Journal. ``The retention of an incompetent, dishonest or dangerous individual exposes the employer to the risk of direct liability for that individual's conduct.''
For years, negligent hiring has applied to current employers who knowingly employ someone who presents a threat to co-workers. But now there's more to the issue.
Recent court decisions have extended negligent hiring to hold former employers liable for damages from injury or death if they did not tell the full truth when the current employer made inquiries about the job applicant.
Here's the case that sent employers a wakeup call about the potential liability of references they give:
In Tampa, Fla., the widows of three men killed in 1993 by an employee of Fireman's Fund Insurance Co. sued Allstate Insurance Co., his previous employer, for wrongful death and negligent hiring. Allstate had said in its reference for Paul Calden that he was ``let go for reasons of restructuring.''
The real reason was for bringing a gun to work and threatening employees. In 1995, the case, in which the former employer was accused of ``helping a dangerous person get a job,'' was settled out of court.
``Lawsuits based on negligent hiring are growing nationwide,'' said John Gaffin, president of HR Associates, a management consulting firm in Miami. ``They are driven by the reluctance of previous employers to give information because they may be sued for defamation of character, so they just give dates of employment.''
Employees also worry about negligent hiring, says Gaffin, national chairman of the Consultants Forum, a division of the Society for Human Resource Management. ``We're seeing more and more violence in the workplace.''
Gaffin recently was an expert witness in a suit filed on behalf of a child whose father, a bookstore manager at Broward Community College in Ft. Lauderdale, Fla., was killed in a robbery by an employee of a temporary agency working for the college. The temporary agency was sued, not the college.
``The agency had vouched for his background, but it hadn't checked his former employers or asked him about the gaps in his employment,'' Gaffin said. ``If it had, it would have found that he was in violation of parole and that there was a warrant out for his arrest.''
Gaffin says the case was settled out of court and the temporary agency is out of business.
The fact that employers may be in the precarious position of being sued for not giving an honest reference in negligent hiring cases and also might be sued for defamation by the job candidate ``is unfair because it puts employers in a trick bag,'' said Gerald Skoning, an attorney with the firm of Seyfarth, Shaw, Fairweather & Geraldson. He represents management in cases of employment law.
However, Skoning points out, 25 states have granted immunity to employers from civil suits on references that are truthful.
On the other hand, when a reference is false and damaging, the burden of proof - as well as the cost of legal fees - is on the job applicant. ``But,'' Skoning says ``it will allow employers to get better information on prospective employees,'' and, among other benefits, will better protect workers from the possibility of a dangerous person being hired.
Skoning urges employers to do full reference checks and to give out candid information themselves (in states that grant immunity). Ultimately, he adds, ``a good former employee who has lost a job also will benefit.''
LENGTH: Medium: 76 linesby CNB