New hire attacks employee: Was it HR’s fault?
January 5, 2009 by Sam NarisiPosted in: In this week's e-newsletter, Job Screening Tests, Latest News & Views, Recent Decisions
It’s one of HR’s worst nightmares: An employee’s injured after an attack by a co-worker. If it turns out the attacker had a history of violent behavior, can the company be sued for hiring him?
That question was asked in one recent court case. Here’s what happened:
An employee was sexually assaulted by her newly hired co-worker. The attacker had no criminal record, but during the investigation, it turned out that he’d been fired from his last job after groping a female employee.
The victim sued for “negligent hiring,” claiming the company should have known his history and never offered him a job.
On the other hand, the company argued it had thoroughly investigated his background and found nothing that would indicate he shouldn’t have been hired.
Background checks were clean
Who won the case?
Answer: The company.
The judge ruled in favor of the employer for two reasons:
- The criminal record check found nothing, and
- Reference checks were positive – the attacker’s previous employer failed to warn the company about any possible threat — in fact, his immediate supervisor gave him a glowing reference. And when asked why he left the company, the previous employer just said it was because he had a “dispute with a co-worker.”
Negligent hiring claim fails
HR did its job investigating the new hire’s background. There’s no way the company could’ve predicted the assault.
In negligent hiring cases, companies are only on the hook when they fail to perform a check — or see the warning signs and ignore them.
Cite: Groom v. Fresenius Medical Care North America, Inc.
January 7th, 2009 at 10:44 am
Isn’t that a catch 22 in regards to the former employer verifying employment, etc?
Couldn’t the new hire sue for defimation of character if he didn’t get the position? Getting the truth from a former employer about work history isn’t as easy as it once was.
January 7th, 2009 at 12:28 pm
I wonder if the previous employer who characterized the employee’s firing as a “dispute with a co-worker” could be sued.
As I recall there were several cases a few years ago where the previous employer FAILED to provide relevant information during a reference check and was held accountable in court.
As I recall, one case involved an employee who was fired for bringing a gun to work. He was fired and when he applied to work at another company his reference check came back clean.
Unfortunately, he shot his co-workers at his new job. The survivors sued the company and it was found that the previous company did not provide the needed information. Then the previous company was sued and lost the case.
January 7th, 2009 at 12:32 pm
Karin is probably right that the new employee could sue, but I believe I’ve heard the person attacked also could sue the previous employer for not disclosing that information – if she found out about it. It puts both the old and new employers in a difficult position – if the info were revealed, the new employer could either not hire the person or let him know he was being watched. All this because that person couldn’t or wouldn’t behave appropriately.
January 7th, 2009 at 3:39 pm
This unveils a dilemma for many: You don’t want to give out too much reference info for fear of being held liable for defamation while at the same time you’re trying to glean as much info as possible (from other employers) about potential new-hires to avoid negligent hiring/retention actions. To wit, Karin’s “Catch-22″ analogy rings quite true….God Bless America!
January 7th, 2009 at 5:29 pm
I think there are more protections for employers providing information than we usually think.
I believe that it is prudent to provide only “factual” information that is relevant to the position they are applying for. Normally I provide the basics; name rank and serial number. If I am provided inforamtion about what job the employee is applying, then I can provide more relevant information. If I am asked for specific information about performance, I may provide my evaluation of the employee’s performance (judgment), but will back it up with factual behavioral evidence.
For example, we provide residential care in some of our programs. If I have an employee who blurred their professional boundaries and fraternized with a client and they were applying for a cashier’s position at a restaurant, then the fraternization issue is not an issue and would not be shared in the reference. However, if they were going to work in a nursing home or to do home health care, I would make sure that it is included in the reference.
January 8th, 2009 at 10:08 am
We document the reason(s) for any employee leaving our organization. If asked, I provide responses based on that documentation only. All employment references go through me. I personally review each exit evaluation for any hint of bias or other danger signals. Facts are a great defense. Most of this goes back to the documentation. We train our supervisors and management very well in how to document actions and behaviors. This works in our favor as well as the employees’. A good employee exiting can count on a good reference and we can back that up with specifics as well. Getting supervisors to document (and do it correctly) is a hard habit to start, but well worth the effort.
January 8th, 2009 at 10:32 am
To Keith Hamm:
I am in FULL agreement. In the words of some great person….What HE said.