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Negligent Hiring... Passing Around the Bad Apple

Written by Sean Douris

Law enforcement is a job field more associated with public contact than other jobs. That interaction is usually of a very personal nature and may often grant the officer access to people’s homes. This is referred to as a “passkey” job, and the courts have found that the employer has a higher duty of care to conduct a thorough background investigation of its employees in these situations.

Few fields place more discretion with junior employees than law enforcement. On their first day of work, police officers have the power to make discretionary life or death decisions. It is critical that the right person be selected for that job.

Negligent hiring should not be confused with the respondeat superior doctrine under which an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee’s duties. Under respondeat superior, injured third parties generally cannot recover damages against employers if the wrongful acts took place outside the scope of the job. Because violence and theft are clearly outside the scope of employment, employers are not held responsible for these types of actions.

Negligent hiring cases allow evidence about the person’s past negligence and reputation, which are items typically not admissible in court proceedings. Additionally, the employing agency may be subject to punitive damages in a negligent hiring case.

The courts have taken the position that if suspicious factors such as short-term residencies, gaps in employment, or admissions of criminal convictions are revealed in the employment application or in interviews with the applicant, the employer should make further inquiries into the applicant’s background—including his criminal record if available.

The first criterion of negligent hiring is that an employment relationship exists. It must then be shown that the employer failed to investigate the background and training of an applicant or that the employer retained an employee after learning that the individual was unfit. Finally, some harm must have come from this failure on the employer’s part and said harm must have been foreseeable. Should all of these ingredients come together, plaintiffs can seek damages for negligent hiring pursuant to 18 U.S.C. 1983.

Law enforcement agencies primarily rely on three screening tools in screening job applicants: an application, the interview and the background check. The completion of a detailed employment application requiring, at a minimum, an applicant’s employment history, education and references should function as the starting point.

A well-crafted application is an agency’s “permission slip” to begin digging deeper. A signature block authorizing a background check is not required, but certainly recommended. This step, in its own right, may thin out unfavorable applicants who do not wish to have certain information exposed. However, application forms have their limitations.

Frequently, the applicant will fail to list all jobs or give a vague reason for leaving a job. According to Equifax Services, a company that specializes in checking the backgrounds of applicants for its clients, no employer should assume any application is accurate. An audit of 100 résumés submitted to Equifax Services revealed that 68% of them contained errors.

Once the application is completed, agencies must verify the information listed, paying particular attention to unexplained gaps in employment, lost licenses, frequent job changes, terminations, admissions of criminal behavior, and potential falsifications of any kind. Agencies may also want to take steps to verify the identity of applicants because as much as 20% of the population has an alias.

Agencies should use Internet search engines to research any potential applicants. Officers who are fired for high-profile incidents will certainly make the newswire, and the story may be on the Internet. Additionally, an applicant’s views or affiliations with unsavory groups may show up on his “unofficial” Internet résumé.

The core information provided on the application should be reviewed and verified. Alarms should sound if an applicant places emphasis on past jobs rather than the most recent employment. Investigators should also be wary of an applicant’s willingness to accept a drastic pay cut. Candidates who admit to what appears to be a small crime may be covering up involvement in more serious criminal activity. Without further examination of these red flags, an employer opens the door for a negligent hiring claim.

Next, an interview with the candidate should be conducted during which the individual’s capabilities and personality can be assessed. Although the interview is a commonly used screening device, it is often the weakest. Most interviewers are not trained to detect deception and will not have the time to root out every untruth. The interview is not without its merits, though. It is often reported after high-profile incidents that the interviewer was unnerved by something about the candidate but did not say anything at the time.

The law enforcement interview typically consists of a panel of sworn employees. This has the distinct advantage of tuning several sets of “antennas” in at one time. If that is not the current practice at your agency, it may be an approach to consider. Interviewers should be armed with a standard list of questions and a standardized note-taking format. This is an area where having properly trained interview staff is essential as the questions and notes from an interview may be public record later.

Completing a background check and interviewing a minimum of three references are the best ways to avoid a charge of negligent hiring. Obtaining multiple references demonstrates that employers used reasonable care to obtain accurate information. Reference checks should focus on asking open-ended questions that relate directly to the requirements of the position.

An example of an open-ended question would be asking, “How would you feel if the candidate was a police officer in your community?” References provided by the applicant can be problematic because, presumably, they are listed because they will give a positive response. Even those not provided by the applicant tend to be positive because the reference does not want to be blamed for the applicant not being hired.

Speaking to neighbors will often yield useful information about the applicant. For those agencies that hire officers who have already attended a police academy, speak with instructors who were not listed as references—they may be a wealth of information.

Several additional tools can be used to conduct an effective background check. Most important, a criminal conviction check should be completed. This should be conducted at the county level of each residence listed by the applicant up to the federal level if the position warrants it. A thorough conviction check will most likely be an employer’s most valuable defense in a negligent hiring case.

Additional tools such as a motor vehicle record check, credit check, or drug testing could be used depending on the type of position being filled. Again, each agency head must be aware of the federal and state regulations covering these tools. Investigators must be fluent with legislation such as the Privacy Act of 1974, Fair Credit Reporting Act, and the Family Educational Rights and Privacy Act.

Driving record searches would be essential for sworn officers and anyone who will be operating a vehicle in the course of the job. Credit checks can be a treacherous area for the uninformed background investigator, but they area valuable resource. Applicants with major financial problems may be distracted from the job or vulnerable to bribes and theft.

Agencies that use pen and pencil tests measuring integrity or psychological aptitude should be sure to use reputable and proven instruments that are legally defensible. Agencies that opt for a polygraph exam should be well-versed with the proper way in which to administer this tool pursuant with the Polygraph Act.

References and background checks should be contacted before any job offer is made. If an offer is made contingent upon reference checking and subsequently withdrawn based on the results, the applicant can reasonably assume that the action was taken because of something that occurred during the reference checking. This could lead to an allegation of wrongful denial of employment or retribution directed at the reference provider.

Employers want to gather as much information as possible about their applicants, yet they are often fearful of conducting a thorough background investigation because of the confusing legal issues surrounding it. However, when these same businesses are asked to provide information, many are reluctant to give any information about former employees.

The doctrine of qualified privilege, which protects statements made in certain contexts that otherwise might be considered slanderous, provides some protection when responding to reference requests. Courts consistently have held that employers have a legitimate business interest in checking references and other relevant background information on prospective employees. On the other hand, a jurisdiction’s lawyers are there to shield it from any chance of a lawsuit. It is for that reason many agencies have adopted a “no comment” policy regarding references.

There are, however, a few reasons to avoid a “no comment” position regarding references. Nothing puts up a red flag with a potential employer quicker than a reference who is unwilling to talk about a former employee. Employers convey a tremendous amount of negative information by saying, “This is all I can tell you.” Another reason to avoid a “no comment” policy is that it does harm to a good former employee whom an agency may wish to assist.

The ethical reason to be truthful when giving references is to avoid continually passing around the “bad apple” who does not perform well or may actually be dangerous. In one case, an employee working for an insurance company in Florida brought a weapon to work one day and was told he had the option to resign or be fired. The employee resigned but was given a letter of reference stating he was out of work because of a reduction in force.

Based on this “clean” reference, the person was hired by another insurance company, where he later became enraged and killed three co-workers. A subsequent lawsuit brought by family members in the case of Jerner v. Allstate Insurance (Fla Cir. Ct. 1995)] found Allstate liable for its failure to report the danger to the new employer. Even those agencies that have a say-nothing policy are at risk based on recent court decisions such as Jerner. With the growth of negligence cases, agencies that do not give information in turn receive no information and are no longer protected by a no comment policy.

A good rule of thumb regarding references is to allow only trained personnel to handle checking and giving references. These personnel need to keep a written account of all the steps taken. Even if they receive a “no comment” response, it should be documented. Good documentation is critical in today’s employment environment. It may be wise to only consider written requests for references from other employers as well. A department policy forbidding the “off the record” discussion of previous employees may also be prudent.

The IACP has suggested the use of a manual to standardize the process for agencies. The Orange Park, FL Police has a policy in place that identifies all of the above-mentioned tools as components of a good background investigation and states, “Although costly and time consuming, background investigations are the most useful and relevant component of the selection process.” Due to the potential consequences of failure, the typical law enforcement background investigation goes far deeper than that of the average occupation, as it should.

While it might be tempting to refuse to hire those with criminal records as a way of avoiding the problem altogether, that too may have legal consequences. An employer must consider the number, nature, gravity, and timeframe of the offenses as well as the applicant’s potential contact with the public. A number of states have laws that make discrimination based on criminal record illegal unless that record involves offenses that concern the nature of the work to be performed. For example, it would be reasonable to refuse to hire a delivery driver with a history of DUI, but it may be illegal to exclude him/her because of a history of theft.

If an employer chooses not to hire a person, it is recommended that the employer send a polite letter explaining that their services are not needed. While an agency shouldn’t lie to an applicant, they should not tell him exactly why he is not being hired. This may diffuse a possible confrontation without providing too much information on why you find the applicant unqualified. 

In the litigious society in which we live, there are arguably many frivolous lawsuits waged against people and government agencies alike. In the area of negligent hiring, however, the liability is tremendous as the results are often disastrous. By using an effective pre-employment screening process, an employer can hope to minimize the risk associated with the hiring process. The utilization of an HR staff member who is trained to effectively conduct standardized, thorough, and documented background investigations could potentially save a law enforcement agency from expensive litigation, or worse, a loss of human life.

Sean Douris has worked for the Orange Park (FL) Police Department for the past seven years and is a former sergeant in the Marine Corps. He can be reached at seandouris@comcast.net.


Published in Law and Order, Dec 2006

Rating : 9.0


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