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Negligent Hiring

The “Negligent Hiring Doctrine” has been adopted by 28 states. In short, it holds the Employer responsible for the actions of their employees. This makes Pre-employment screening a valuable resource for your business.

Workplace violence –including assaults and suicides– accounted for 15% of all work-related fatal occupational injuries in 2002. Violent acts are perennially among the top three causes of workplace fatalities for all workers, and a major cause of fatalities among taxicab drivers, police officers, and sales workers. In their article entitled “Work-related Homicides: The Facts,” Eric Sygnatur and Guy Toscano note that “Contrary to popular belief, the majority of these incidents are not crimes of passion committed by disgruntled coworkers and spouses, but rather result from robberies.” ...there were still almost 24,000 incidents of this nature resulting in time away from work.

Here is a recent article from

What’s Negligent Hiring?

by Paul W. Barada

Monster Salary and Negotiation Expert

One of the newest and most important areas of litigation in the human resources field is negligent hiring. In a nutshell, negligent hiring is the failure to use reasonable care in the employment selection process. Moreover, the key, of course, is the phrase “reasonable care” and the consequences for failing to use it!

Generally speaking, reasonable care is the level of care that a reasonably prudent person would exercise under the circumstances. Hmm. We are teetering perilously close to using what lawyers sometimes call words of art.

The most important thing to remember is that negligent hiring has more to do with the failure to exercise reasonable care in the hiring process than anything else does. What constitutes reasonable care depends on the type of position being filled and the degree of harm to others that could result from the failure to use reasonable care.

Suppose you’re hiring a janitor. Reasonable care might be demonstrated by showing that previous employment had been confirmed and other pertinent information on the job application had been verified before making a job offer. Now suppose you’re hiring a brain surgeon. Would you have demonstrated reasonable care by doing the same thing? Not. Why? Because the risk of harm to others would be higher for the brain surgeon than a janitor. Therefore, a company that employs brain surgeons will be held to a higher standard to show that reasonable care was used in the selection process than one that employs custodians.

It is possible for all of this to become complicated and fall into the morass of legalese if we’re not careful. For instance, most HR professionals know that the truth is an absolute defense when it comes to providing information to a prospective employer. If an employee was fired for stealing, and it’s true, there’s no danger in saying so. Far too many companies take the stance that saying nothing is better than being honest about former employees, resulting in bad apples continuing to be passed from employer to employer. However, what does the truth have to do with negligent hiring? From a legal standpoint, an employer could be held liable for negligent hiring if he “knew or should have known” the information provided about a candidate was false and, as a result, a fellow employee or other innocent third party was harmed in some way.

Industry Statistics

  • 25% list phony employers
  • 41% Inflate salary claims
  • 18% Lie about criminal records
  • 36-40 million people in the U.S have criminal records
  • 35% of businesses fail due to employee theft
  • 2.2 million workers are physically attacked on the job
  • 6.3 million are threatened with violence
  • The average cost of mitigating a violent workplace accident is $400,000
  • Nine million drug users are currently in the workforce.
  • 75% of all employment applications are falsified. (1 out of 20 falsify name, education, social security, and driver’s license numbers)
  • Employees steal ten times more than shoplifters
  • Embezzlement losses exceed $4 billion annually.

Industry Links

Fair Credit Reporting Act

Fair and Accurate Credit Transactions Act of 2003

NY Dept of Banking Regulation on Background Checks


Quest Diagnostics Locations

Reasons For Conducting Background Checks For Pre-Employment Screening

  • 25% list phony employers
  • 41% Inflate salary claims.
  • 18% Lie about criminal records.
  • 36-40 million people in the U.S have criminal records.
  • 35% of businesses fail due to employee theft.
  • 2.2million workers are physically attacked on the job.
  • 6.3 million are threatened with violence the average cost of mitigating a violent workplace accident is $400,00.
  • 9million drug users are currently in the workforce.
  • 75% of all employment applications are falsified (1 out of 20 falsify name, education, social security, and drivers license numbers)
  • Employees steal ten times more than shoplifters.
  • Embezzlement losses exceed $4 billion annually. 

Why Conduct Pre-Employment Screening

Conducting pre-employment screening benefits both large and small companies. In the wake of the tragedies of 9-11, there has been an increased concern in Pre-employment screening. Here are some reasons why.

Access To Criminal Records All Across The Country

We can bring valuable and confidential information, regarding an individuals’ criminal record, right to the hiring manager’s computer screen in just a few days.

Saves Time And Money, Increasing Productivity

By outsourcing the employment screening to DAI your hiring manager does not have to wait to hear from previous employers, fill out education verification forms with universities, fax out signed release forms to various parties. It can help an understaffed Human Resource department become more productive by allowing them to deal with other tasks at hand while DAI conducts.

Helps Prevent Costly Negligent Hiring Lawsuits

Gives small companies the same resources of larger companies’ HR departments

Hiring more staff for Human Resources department can be very costly, with salaries, retirement plans, benefits, lost productivity due to vacation and sick days. When your existing HR department and hiring managers work with DAI all these costs are.

Helps A Company Hire The Appropriate Individuals

DAI can help eliminate the individuals who are under qualified and who lie about their education, employment, and past salaries. These overstatements can cost company money by overpaying an under-educated and under experienced employee. This also may help reduce turnover.

Creating A Safer Work Environment

When a company checks the criminal backgrounds of its potential employees, it fulfills its responsibility to its current employees. Making the workplace safer for all.

Understanding InstaCriminal Records

There are two products that you can choose, the InstaCriminal Statewide product or the InstaCriminal National product. The InstaCriminal products are a database product, which searches three separate databases, including a national or state sex offender, national or state criminal and OFAC (Office of Foreign Asset Control) database. The results will indicate if there is a “record” if there is a match on the name or a similar name. For example, the applicant may be named Dan, and the product will bring back any variations of it, including a Daniel. This is why we recommend you not order this product without a county search. So you must look at all the responses and look at the date of birth, description, and location of the criminal. It is up to you, our client, to decide if the record found is or is not your applicant. If you would like to be sure, you can order a county criminal record for that county.

Whenever the record is a sex offender record, it will deliver an “incomplete.” Again it will give you records of people with the same name or a similar name to your applicant. Usually, it does not give you a description of the person, but it will give you a web address next to “disposition” where you can search for the criminal’s description and picture. It is up to you, our client, to decide if the record found is or is not your applicant. If you would like to be sure, you can order a county criminal record for that county where the conviction took place.

How To Understand Employment Reports

What to look for in a Social Security Search

  • Make sure the information you obtain is for the correct individual
  • Check Names Retrieved on Report
  • Compare the address provided by your applicant with the addresses in the social search

What to look for in a Consumer Credit Report for Employment Purposes

  • Number of a list of Accounts
  • Number of Accounts with Negative Information
  • Number and list of accounts that have placed the applicant’s Account for Collection
  • Public Records
  • Total Outstanding Balances
  • Outstanding Balances and Payment History by Account

What to look for in a Criminal Record Search

1. Type of Information to Consider

  • Applicant’s Name
  • Jurisdiction
  • Docket Number
  • Indictment Number
  • Arrest Date
  • Reason for Arrest
  • Disposition Date
  • Disposition

2. Factors to Consider

  • The seriousness of the offense
  • The date the offense occurred
  • The person’s age at the time of the offense
  • Evidence of successful rehabilitation
  • New York State public policy to encourage the employment of previously convicted persons
  • General lack of “good moral character” is insufficient

What to look for in a Motor Vehicle Report

  • Current Status of License
  • History of Speeding, Reckless Driving, Careless Driving, DUI, DWI, and more.
  • All Suspensions with Dates and Causes of Said Suspensions

How To Conduct The Best Possible Criminal Search

In Conducting A Social Security Search…

Check to see if the name and address provided matches the one provided to you by the applicant. If there is an address there that your applicant did not provide, then you might want to search that county for a criminal record.

In conducting a County Criminal Search, which is a physical court search…

Search all the counties that the applicant has lived, worked or gone to school in the past ten years, and you may want to include any other addresses that resulted from the SSN search. Our searches generally provide a 7-year history but if you would like you can notify us to search up to10 years, except California.

In conducting a Federal Criminal Search…

We suggest this search for employees who have a high-level position, will be handling money, may be exposed to children or the elderly.

In conducting a InstaCriminal National Search…

It is a database search by name and DOB. The purpose of this search is to cast a broader net of the country since applicants may have visited other areas of the country. It will include all names and any similar names to that of your applicant. (For more insight on how to read an Insta Criminal report see Insta-criminal attachment)

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