Re: AEG files their summary judgment motion asking to dismiss Katherine Jackson lawsuit
I'm knowledgeable enough to answer your questions but here's some info to make sense of it
Definition of Negligent Hiring
One of the major problems facing employers in business and criminal justice is negligent hiring.
This theory holds that employers who know or have reason to believe that a worker poses a threat to the public may be liable for the damages caused by that employee (Hunter 2002). Negligent hiring involves three main concepts:
An employer is held liable for the actions of their employers
An employer may be directly liable if it hires, with negligence, an applicant for employment that involves an unreasonable risk of injury to others (Ferguson 2003). Employers can be held liable for hiring an employee who later performs a prosecutable action on the basis that they placed the employee in a position that allowed the employed individual to execute their offense.
Negligent hiring is not the same as "Respondeat Superior"
Negligent hiring varies slightly from "respondeat superior". The respondeat superior doctrine only holds the employer liable for the wrongs or negligence of an employee acting within the scope of the employee's duties (Hunter 2002). In contrast, under the negligent hiring doctrine an employer may be liable for what is performed by the employee outside the scope of employment, when not at work or after work hours (Hunter 2002).
Negligent hiring is still applicable even with no statutes present
Negligent hiring is a concern for employers even if no statute mandates a background check for a particular position. The absence of such statues does not mean that investigation of the applicant is not required. A common law duty of reasonable care may actually obligate an employer to conduct a criminal record check or the use of other screening methods even without the presence of statues mandating employers to do so (Ferguson 2003).
Criteria for Negligent Hiring
For an employer to be held liable for the actions of their employees there are a few sets of criteria to be examined in order to determine if their actions are in direct relation to their hiring.
An employment relationship must be present
Primarily, there must be an employment relationship in existence (Hunter 2002). This requires the individual to be hired under the requirements for the employment as established by the employer. The relationship between the employer and employee must be work related.
Failure to find history of similar behavior of the applicant.
In order for an plaintiff to sue an employer for negligent hiring,
they must show that the company failed to determine that the employee had a history of similar behavior. The wrongful actions performed by the employee must be consistent with the dangerous propensity he or she exhibited on prior occasions (Ferguson 2003).
An example of this criterion was apparent in the case of Reed vs. Kelly. In this case, a security guard sexually assaulted a woman at the building where he worked, but the court granted summary judgment to the employer. The reasoning was that although the guard had been charged five years earlier in connection with a domestic violence incident and fired from a previous job three years earlier after a fight with a coworker, these offenses were not consistent with sexual assault of a stranger (Ferguson 2003). Had they been consistent, the judgment may have differed finding the employer liable.
Lacking investigations
What really starts the negligent hiring cycle involves the investigation, or lack of investigation, regarding potential employees.
An employer's failure to investigate the background and training of an applicant may later be held against the employer in the court of law if the employee performs illegal actions that stems from their employment (Hunter 2002). If certain factors are revealed in the employment application process or during interviews with the applicant, these should lead an employer to further investigate into the applicant's background; particularly his or her criminal record. These factors include things such as short-term residencies, gaps in employment or admissions of criminal convictions (Hunter 2002). Without further examination of these red flags, liability may follow if the individual commits torturous or criminal acts after being hired.
Lack of actions by the employer following discovery of pertinent information
An employer may also need to focus on their actions following the discovery of information found on an individual. The Idaho Supreme Court ruled that a company's failure to inquire about a prospective employee's previous termination and its employee assistance program's failure to alert staff when it learned the employee might pose a danger were sufficient evidence to support a negligent hiring claim (Hunter 2002).
The employer may be found liable if a they are aware of an employee whom may pose a danger and does nothing to terminate this employee, and harm subsequently is done. An example of this was present in the Doe vs. Garcia case. Following a review by the hospital of his application, including contact with one of his past employers, which revealed nothing out of the ordinary, Garcia was hired. Shortly following his hiring, Garcia was reprimanded for encouraging underage drinking at the work place. He had also developed a relationship with a patient at the hospital he was working at, which carried over past Garcia's termination from the hospital. During this period of time, Garcia began sexually molesting the patient who was a minor at the time. The victim's parents sued against Garcia and the hospital who had hired him. The court ruled at the Supreme Court level in Idaho that there was sufficient evidence to support the negligent hiring. The reason for this action was following Garcia's reprimand for the underage drinking encouragement, he had met with employees assistance program (EAP) for what he termed "being quite preoccupied with sex." During these sessions, Garcia admitted to a counselor that he had been terminated from a previous job for sexually molesting a patient. Staff with EAPs were directly employed by the hospital, but they did not share Garcia's admission with the hospital's management (Hunter 2002). The wrongful acts later carried out by Garcia may not have occurred had his termination followed the revelation of his molestation background.
Hiring of independent contractors
A major issue arises with liability when companies begin hiring out for services. When using independent contractors, few companies screen contract workers. Few client firms even require that the contractors they are hiring conduct background checks on their employees or subcontractors (Hunter 2002). The common reason for this is that ordinarily, employers are not held legally liable for the acts of independent contractors. In the case of Birrell v. Indiana Auto Sales & Repair,
the court indicated that an employer is not usually liable for the negligence of an independent contractor, but noted exceptions to this (Hunter 2002).
Liability can occur in instances where the contract requires the performance of intrinsically dangerous work or where the principal is by law or contract charged with performing the specific duty that caused the injury. Gleckman (1999) mentions that liability may also arise if the duties required by the contract workers undergo ratification by the employer, changing the original requirements of the hired contractor. In another court ruling, Camargo vs. Tjaarda Dairy, in California, the court felt that it is the responsibility of the hirer to select a competent and careful independent contractor and would be held liable for unlawful acts done by the contract workers.
Nature of the Job
A great number of courts feel that the investigations that should take place prior to hiring an individual must be reasonable in terms of the job the individual is applying for.
The employer should consider the potential risk, harm, or injury that may occur to third parties if hiring the individual and conduct background investigations accordingly (Hunter 2002). What is meant by this standard involves the real risk of harm involved in certain industries as opposed to others.
Industries that employ particularly vulnerable agents, such as day care or elder care may necessitate higher standards in reviewing backgrounds as opposed to other industries such as retail or engineering (Hunter 2002). Law enforcement, employers should take similar precautions to those in day or elder care. Employers hiring in the criminal justice system should consider the entities being placed at risk by hiring certain individuals. Criminal justice and protective service officials are placed in a position requiring them to care for not only the company they are working for but also society.
http://www.ifpo.org/articlebank/bad_apples.html
