Pennsylvania courts have in recent cases recognized causes of action against employers for negligent hiring and supervision of employees. These cases emphasize the importance of conducting background checks before hiring — especially for employees having unsupervised one-on-one interaction with the public, patients, and customers and those handling money or investments.
In a negligent hiring case, an employee of a meter-reading company assaulted a female customer after entering her home to read the meter. The employer did not conduct a criminal background check until after the assault. The background check showed several arrests and convictions for indecent assault, burglary, arson, etc. The court held that the employer should have known the employee was unfit to perform his duties and that it acted in a reckless manner by sending him to the homes of others before completing the background check.
To minimize exposure for this type of negligent hiring claim an employer should:
- Use written employment applications which contain a notice that if a job is offered, criminal background checks, verification of credentials, and reference checks will be conducted; ask whether the applicant has been convicted or entered a plea of guilty or nolo contendere to a felony or misdemeanor crime, and, if so, ask the applicant to provide the relevant details; and obtain a release authorizing the employer to conduct background checks and releasing third parties from liability for disclosing information regarding an applicant’s suitability for employment.
- Obtain a criminal background check, as well as reference checks, if the position warrants it (such as where an employee is expected to function without direct supervision and to have direct contact with the public, clients, or patients in safety sensitive positions, handling employer or client funds, or providing medical care to patients) and document the results of the background checks. In Pennsylvania, the applicant must be advised if a decision not to hire is based in whole or in part on a criminal background check.
- Use an introductory period of employment (such as 90 days) during which each new employee’s performance will be evaluated.
In addition to the hiring recommendations above, if employees are working alone or remotely, employers should consider making periodic, unannounced visits and implement adequate safeguards to prevent improper conduct, theft, or dishonesty. Having a written policy on such matters is a good starting point, along with recurrent training and periodic internal reminders on sensitive topics.
Employers must remember: you can be held responsible for your employee’s conduct!