New hire attacks employee: Was it HR’s fault?
October 2, 2008 by Sam NarisiPosted in: Background checks, Law, Special Report
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.
October 3rd, 2008 at 11:05 am
Just shows that completing the due dilligence when hiring a new employees is valuable and will support your business should a situation like this occur.
October 3rd, 2008 at 11:45 am
I’m wondering what the follow-up question(s) were to the “dispute with a co-woker” red flag response.
October 3rd, 2008 at 11:58 am
Couldn’t or shouldn’t his previous employer be liable for negligent referencing?
October 3rd, 2008 at 12:10 pm
It is my understanding, however, that the victim would be able to go after the perpetrator’s prior employer for providing what amounts to a “negligent reference.” We are currently encouraging our hiring authorities to mention this to referees when they are faced with resistance in getting any detailed job performance information regarding a prospective employee. I’d welcome others’ opinions on this matter.
October 3rd, 2008 at 12:15 pm
I wonder if the previous employer could be at fault for not revealing the groping incident.
October 3rd, 2008 at 1:13 pm
I feel at times HR’s hands are tied on what we can and cannot say when we terminate an employee for cuase.
October 3rd, 2008 at 1:34 pm
This is a question in regards to the comment Marc left, what have your hiring authorities experienced using this technique? Have they been able to get more than the typical “safe” reference responses?
October 3rd, 2008 at 2:03 pm
Kim – Excellent question. This recommendation to our hiring authorities is relatively recent and I have not yet received feedback on its use. Of course, a basic issue is the extent to which any particular hiring authority (manager) feels assertive or empowered enough to utilize it. Overcoming fear of “confrontation” is one of the first steps we have to deal with. I can understand that it would take a healthy level of assertiveness to first attempt a “warning” about “secondary liability” with a front-line HR person, followed by a request to speak to a “supervisor” when the expected party line is given as a first response. In our hiring process training, we (HR) are encouraging the hiring managers to do this but are explicitly offering support and consultation if they would like assistance. Since it’s still such a new strategy for us, we have not had time to assess its effectiveness. Another benefit for us is that we are located in Ohio, a state that holds employers harmless for sharing job performance data, as long as it’s truthful and focused on the job-specific criteria, and especially if there were potential liability issues related to a former employee’s behavior on the job.
Hope this helps!
October 3rd, 2008 at 2:05 pm
Let’s all move to Ohio!