By Linnea Sinclair-Bernadino, Island Investigations

There's better than a 50-50 chance that whatever state you're reading this in now is a state that upholds the Negligent Hiring Doctrine. At last count, approximately twenty-eight out of fifty states legally recognize that an employer is responsible for, and can be held accountable for, checking the background and references of any job applicant before placing that applicant in a position of high public contact. What that means for the private investigative industry is that the courts are now on your side when you talk to clients about performing the service of pre-employment screening.

Traditionally, a master has always been held responsible for the acts of he servant when the servant was performing those duties inherent to his position as employee. For example, a taxicab passenger injured in a traffic accident may sue the cab company. The Negligent Hiring Doctrine, However, take the matter a step further, allowing the injured passenger to further sue for damages if it can be proved that a check of the cab driver's background would've revealed, for example, he was an unlicensed driver, had a history of drunk-driving arrests or had some other factor in his background that made him unsuited for the position for which he was hired.

This has been especially telling in court cases where employees with a high level of public contact and access--like service personnel, maintenance workers and workers in the home health-care industry--commit a criminal act such as theft or rape and it is later revealed that if a simple background check had been performed, these individuals never would have been placed in these positions at all!

In the 1989 Florida case of Brittany v Heather (457 So.2d 1156), in which a woman was assaulted by a pest control company employee who had been entrusted with the key to her home, the Court stated:

"There is no question that an employer can be held liable in tort for negligent hiring...
If an employer wishes to give an employee the indicia of authority to enter into the living
quarters of others, it has the responsibility of first making some inquiry with respect to
whether it is safe to do so."

Surprisingly, very few employers are aware of the risk they are placing themselves and their companies in when they choose to hire without screening. And those that do screen at all are usually more concerned with such in-house problems as employee theft or fraud.
Not that these concerns should be taken lightly. On the contrary, every employer--especially those in the retail field or in business that handle a lot of cash transactions--the need for internal security is great.

But the Doctrine of Negligent Hiring encompasses a greater area of business than just retail and restaurant. Under this doctrine, it's not the dollar value of the company's product but the exposure of its employees that are of greatest concern. Businesses that immediately come to mind in this category are real estate agents (who have keys or know pass-lock combinations), rental apartment personnel, condominium personnel, delivery persons, service and maintenance persons, nursing and convalescent home workers, home health care aides and utility personnel. This greatly broadens the field for any private Investigator interested in marketing his or her pre-employment screenings skills in the business community.

I won't go into the methodology of pre-employment checks; there are several good manuals written on the subject including Ralph Thomas' "Pre-Employment Investigation For Private Investigators". Suffice it to say that when screening specifically for Negligent Hiring Doctrine situations, common sense would tell you that the criminal background check is of the utmost importance.

Care must be taken in this area, however, as the Courts--at least those in Florida don't necessarily take that same view. While they do admit the importance of background checks: "Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness, and the issue of liability focuses upon the adequacy of the employer's pre-employment investigation into the employee's background."(Garcia v Duffy, 492 So.2d 435((1986)); they are cautious when it comes to advocating denial of a position to an applicant solely because he or she has a criminal history. In Garcia, the Courts quoted an earlier decision in Williams v Feather Sound, Inc., explaining that to say an employer can never hire a person with a criminal record "...flies in the face of the premise that society must make a reasonable effort to rehabilitate those who have gone astray." (386 So.2d 1238 at 1241) It counsels, both in Garcia, Williams and other negligent hiring cases, to take a look at the charges as well as the time element involved.

This strikes me as only common sense and the private investigator, generally more familiar with the ins-and-outs of the legal system than the average businessman, is in the perfect position to help the business client obtain a further understanding of what criminal activities did take place, if any, and their effects on the applicant today.

Still, the business client, once apprised through pre-employment screening of an applicant's criminal background, must be prepared to make a hiring decision on his own, fully cognizant of the risk he is taking in exposing an applicant with a criminal history to the public.
In marketing pre-employment services in Negligent Hiring Doctrine states, a good place to start is the Sunday "Help Wanted" classifieds. There you have a captive audience who is already deep in the mechanics of the hiring process and is likely to be more receptive to an intelligently prepared presentation. If you have a talent for public speaking, business-oriented service clubs who frequently have guest speakers are also a way to expose your services to a large number of people in a short space of time. Given the general lack of knowledge in the business community regarding the Negligent Hiring Doctrine, any attempt to educate business clients-- especially when you tell them that Negligent Hiring suits can cost upwards of $100,000 to $200,000 in punitive damages--should be well received.

If you're not sure whether or not your state upholds the Negligent Hiring Doctrine, check in your local law library for your state's West's Digests or your state's Jurisprudence series published by Lawyer's Co-operative. Topic headings where you'll find case law synopsis--and your answers--are usually "Agency and Employment" or "Master And Servant". In either reference series you'll get a chronological listing of case synopses that are clear and easy to understand, and can provide excellent examples to use when illustrating the importance of pre-employment screening to potential clients.

In today's highly mobile society, the frequency of personnel changes as well as the transience of the working population as a whole make pre-employment screening a necessary part of any business's hiring process. A private investigator with a talent for background investigations can utilize this trend to provide him or her with a secure--and appreciative client base.


Manuals And Resources for Starting Your Own Booming
Pre-Employment Screening service!


Thomas Investigative Publications, Inc.
P O Box 82148, Austin Texas, 78708
Phone 512.719.3595 Fax 512.719.3594

Safe Hiring Manual!
Expert Guide To Providing And Conducting Pre-Employment Screening Services

The Complete Guide to Keeping Criminals, Imposters and Terrorists Out of The Workplace And Providing The Background Checks To Do So
By Lester S. Rosen

Sleuthing 101
Background Checks and The Law
Unique Approaches And Prospective by Barry Nadell

Pre-Employment Investigation For Private Investigators
How To Start & Conduct Pre-employment Screening Services
By Ralph D. Thomas
The Criminal Records Manual
The Complete Guide to the Legal Use of Criminal Records And Obtaining Access In All 50 States! Includes Various Methods To Access Criminal Records, Tools And Resources To Access Them With As Well As Various Legal Issues And Restrictions That Deal With Accessing And Reporting Them.
By Derk Hinton
The Sourcebook to Public Record Information 2006
Pages: 1956, Price:  $87.95 The Major Secret Weapon Used By Almost All Information Brokers! Cut Out The Middle Man And Get Your Information Direct

National Directory To College And University Student Records
The Only Source You Need To Verify Student Attendance, Degree And Transcript Records At Accredited Post-Secondary Schools!
Public Records Search System On CD
Massive CD Gives You Instant Access To Free Public Records In The Internet And Contact info.
The MVR Book And MVR Decoder
Stater-By-State Guide To Obtaining MVR Information And Decoding Them.
Amazing Confidential Sources Of Information
Every Investigator Needs! It's not a little book anymore!


BACKGROUND INVESTIGATION FORUMThis list is dedicated to investigators and related professionals who conduct background investigations. It's purpose is to talk about sources of information for background checks, techniques to use, laws that relate to conducting a background and pre-employment check and to network with other professionals. If you wish to obtain all messages in one email- subscribe in digest form. This forum is sponsored by The National Association Of Investigative Specialists, Inc.

Thomas Investigative Publications, Inc.
P O Box 82148, Austin Texas, 78708
Phone 512.719.3595 Fax 512.719.3594


Copyright: 2006, Ralph Thomas
All rights reserved.