THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, March 4, 1995 TAG: 9503040286
SECTION: REAL ESTATE WEEKLY PAGE: 08 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: Medium: 96 lines
Q. Our association board has been considering hiring our own grounds maintenance personnel instead of using a contracted service.
Some board members have said we are foolish to hire any other employees other than the association manager, because we are exposing ourselves to liability for their actions.
Another board member said we need to do all sorts of background checks and thorough homework on any individual we hire, because if we didn't and that employee engages in some criminal conduct involving a resident, then we could be liable.
Is that true? Doesn't our insurance protect us from this kind of suit?
A. Before answering this question, we would like to express our great appreciation and thanks to all of you who wrote and called the newspaper requesting the return of the column. We are pleased to be back in the groove.
There is, indeed, a type of lawsuit that can be brought on the grounds of negligent hiring, which also extends to negligent supervision and training; however, if you do a reasonable job investigating a prospective employee, you cannot be held liable because you have exercised reasonable efforts to discover any pertinent negative background information.
There are several steps managers and boards can take to reduce their risk of potential liability.
During the hiring process, the employer should make reasonable investigations into the character and background of a potential employee to determine whether the employee is competent or fit for employment, generally, and for the particular position for which he or she is to fill.
The scope of the investigation will vary with the circumstances. One factor that is important in determining the scope of the investigation is the degree of risk to third parties who will foreseeably come into contact with the employee.
The scope of the duty is directly related to the potential severity of the risk of harm to which other people may be subjected by the employee.
For example, when hiring an on-site manager whereby he or she has access to dwellings and supervisory control over other people, it is more important to scrutinize that person's background than it would be when hiring a part-time secretary for the association.
While the hiring of independent contractors minimizes the risk of liability for the association, in dealing with the independent contractors, it would be wise to inquire into what kind of background checks they perform when hiring their employees.
Don't get the idea that it's easy for a plaintiff to prove a negligent hiring case, but at the same time there is no use in even having to fight such a claim.
It is true that your insurance coverage should provide some protection in this regard, but it probably won't be 100 percent.
You should check with your insurance agent to make sure you have coverage for this type of claim. But, as in most insurance matters, there is going to be a deductible and you may have to pay your own attorney's fees. In most cases, you probably fulfill the due diligence requirements if you simply talk to the former employer and do a criminal history check.
Taking a little extra time in the hiring process could prevent a real financial disaster for the association if an employee should create a claim for a resident or guest.
The subject of employment law as it affects associations and many other topics will be discussed at the upcoming Conference and Expo '96 sponsored by the Southeastern Virginia Chapter of Community Associations Institute on March 11 at the Norfolk Marriott Convention Center.
We hope you'll attend, as we expect it to be even bigger and better than last year's event.
Gov. George F. Allen will speak at the noon luncheon. Call Rhonda Riesco at 464-3009 to sign up. MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues and are affiliated with the Southeastern
Virginia chapter of the Community Associations Institute. Send comments
and questions to them at Real Estate Weekly, 150 W. Brambleton Ave.,
Norfolk, Va. 23510. To submit questions by phone, call 446-2033; fax:
446-2531.
LOUD AND CLEAR
The column ``Common Ground'' returns with this issue and will be
published every other week, alternating with ``Landlords and Tenants.''
Readers inundated us with complaints when we announced we were dropping
it several weeks ago. We heard you.
We especially cite the following people for making the case for
Messrs. Kirkland and Inman: Tommy Couch, Cynthia S. Gilliam, Deborah G.
Seplak, J. Halloran, Polly Brickman, Dave Addis and D.M. Simon
Also, Karin Wagner, Bernie J. Grablowsky, Robert and Nancy Hirstein,
Ron St. John, Marilyn Hearn, Joyce Keffer and Linda L. Farsi. Thanks
one and all.
by CNB