Tag Archives: Duty of Care

FedEx Named In Lawsuit That Includes Claim of Negligent Hiring and Retention of Truck Driver

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

According to a report from KECI NBC 13 in Missoula, Montana, the family of a volunteer firefighter killed in a 2008 crash has filed a lawsuit claiming that FedEx, the world’s largest express transportation company, and the owner of the semi truck that killed the victim were negligent in hiring the driver of the semi truck and should have known that the driver was “incompetent and unfit to perform the job that he was hired to perform based on his horrendous driving record.”

The volunteer firefighter had stopped to help another motorist and was sitting in his truck on the shoulder of an Interstate highway with his emergency lights on to create a safety zone for a one-vehicle rollover when the driver of the semi truck – who was later accused of driving too fast for conditions – slammed into the firefighter’s truck, KECI reports. The driver of the semi is facing a negligent homicide charge and pleaded not guilty. The matter is still pending in court.

The lawsuit filed by the family of the deceased volunteer firefighter includes a claim of “Negligent Hiring and Retention” against both FedEx and the owner of the semi truck claiming that the Defendants:

  • Knew, or in the exercise of reasonable care should have known, that driver of the semi truck was incompetent and unfit to perform the job that he was hired to perform based on his horrendous driving record.
  • Had a duty of reasonable care owed to Plaintiffs to hire and retain competent, qualified, and safe employees.
  • Breached their duty of reasonable care by hiring and retaining the driver who was incompetent, unfit, and dangerous.
  • Failed to exercise reasonable care, which was the proximate cause of injuries and death and damages suffered by Plaintiff.

To read the full text of the lawsuit, click here. The matter is still pending in court.

Every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring, according to ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace,’ a comprehensive guide produced by background check firm Employment Screening Resources (ESR). The legal description of the duty of care – “due diligence” – means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.

If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called “negligent hiring,” which is the flip side of “due diligence.” If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.

Understanding how due diligence is associated with the liability for negligent hiring is critical for any employer. If a bad hire does something to force an employer to defend in court, then an employer must show how it took appropriate measures of due diligence. Employers that do not perform due diligence are sitting ducks for litigation, including attorneys’ fees and big damage awards.

Employers that implement and follow a Safe Hiring Program (SHP) show due diligence measures that are a powerful legal protection. While the cost of exercising due diligence through a SHP is usually very modest, employers need to measure the risk of hiring blind with the risk of litigation and attorney fees stemming from a single bad hiring decision that may cause injuries and death.

For more information on background checks and negligent hiring, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.


Recent Trend Shows Women Increasingly Becoming Involved in Workplace Violence Incidents

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

Some experts believe that an emerging trend of women as workplace killers may be indicated by recent cases including a September 2010 incident in which a woman allegedly killed coworkers at the baking plant in Philadelphia where she worked after being suspended from her job.

A story on The Philadelphia Inquirer website about the incident reveals that  although women commit fewer than 5 percent of homicides and assaults in the workplace – and are much less likely to kill than men as a rule – several high-profile cases of women killing in the workplace have occurred in the past few years.

  • February 2010: A female professor was accused of killing three colleagues and wounding three others after being denied tenure at a university in Alabama.
  • March 2010: A female supermarket worker in Florida fired for threatening to kill a coworker returned to work and made good on her threat.
  • January 2006: A female former U.S. Postal Service employee killed six colleagues and then herself at a mail-sorting plant in California.

These past cases, combined with the most recent case in Philadelphia, could indicate a possible trend emerging of women committing more acts of workplace violence, according to some experts on the subject.

A teacher at the FBI Academy and author of books on crisis management and violence is quoted as asking “Is it too early to call it a trend, or is it just an anomaly?” in the Inquirer story, adding that he “cannot recall a one- or two-year period in which we’ve had as many women with multiple victims.”

In addition, a study by the University of Tennessee included in the story found that women – although they make up more than half the U.S. population – committed only 15 percent of homicides,  showing that they are much less likely to kill than men. When women do kill, the same study also found they are more likely to choose more “personal” targets such as spouses, intimate acquaintances, or relatives.

According to the U.S. Bureau of Labor Statistics, there were 521 workplace killings in the United States in 2009, 420 of them committed by gunfire. The bureau did not have information on how many were committed by women.

While the term  “workplace violence” is appropriate for a quick definition or diagnosis of a problem, fully defining all aspects of  “workplace violence” can be nebulous at best. Many employers loosely define workplace violence as:

  • Assaults, other violent acts, or threats which occur in or are related to the workplace and entail a substantial risk of physical or emotional harm to individuals, or damage to company resources or capabilities.

While this definition covers a fair degree of actions, a better interpretation should be used in order to create an effective, defensible policy for employers. A better definition of workplace violence should account for the type of offense, circumstance — where and when an incident occurs, and whether it is considered to be “on-the-job” — and party or parties involved. Workplace violence can take place anywhere employees are required to carry out a business-related function.

While many acts of workplace violence are caused by external parties, such as robbery in the workplace by a stranger, recent concerns over workplace violence center on workplace violence carried out by existing employees. These internal incidents of workplace violence leave employers largely liable for any problems that occur in the workplace under the “Negligent Hiring Doctrine” dictating that employers can be held liable for damages if they knowingly employ persons known to pose a potential threat to co-workers or the public.

That said, the question arises — how can an employer identify a potentially problematic employee? The problem is that there is no magic formula that tells an employer in advance who will and will not be violent. Predicting future violence is a matter of considerable controversy. However, experts have found some factors that are present in many cases of workplace violence. One important factor is a history of past violence.  For that reason, pre-employment background checks are widely regarded as an effective screening procedure because the process serves three major functions:

  • First, screening job applicants can bring to light problems in a potential hire’s past such as a history of violence, harassment, or extremely inappropriate behavior.
  • Second, by making it standard policy to screen all job applicants on their way into the company, employers demonstrate due diligence, showing that all reasonable efforts have been made in determining whether or not the applicant poses a threat to the company or to the public.
  • Third, pro-actively communicated background screening practices cause applicants to opt-out by discouraging prospective jobseekers with criminal or problematic backgrounds from applying.

However, there is more to preventing workplace problems than screening at the door. Lives of employees can change. A person who checked out in an initial screen may over time develop the traits or behaviors indicative of a potentially violent employee. It is up to the employer to maintain a constant eye on conditions and events in the workplace — to stay aware of employee attitudes and concerns in order to ensure the safety and security of everyone involved.

For more information about background checks and workplace violence, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://www.philly.com/philly/news/102713124.html

Family of Michael Jackson Files Suit Claiming Death of Singer Caused by Negligent Hiring and Retention of Doctor

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

According to a post on The Hollywood Reporter, Esq. blog, the family of deceased singer Michael Jackson has filed a lawsuit against event production company AEG Live and others claiming they are responsible for the pop idol’s death because his contract with AEG for the planned “This Is It” tour created a legal duty to keep him healthy. 
As part of the lawsuit, the Jackson family accuses AEG of the “negligent hiring” and retention of Dr. Conrad Murray to care for Jackson in advance of the concerts instead of his usual doctor, the blog notes. Murray later allegedly administered the drug Propofol to Jackson without necessary resuscitation equipment or nursing support, and the singer died with the drug in his system.

With regard to the ‘Negligent Hiring’ cause of action, the complaint filed in Los Angeles Superior Court on behalf of the family includes verbiage claiming that:

  • In undertaking to hire Murray, AEG performed absolutely no diligence in investigating or checking into Murray’s background, specialties, ability, or even whether he was insured, which it had a duty to do. In choosing to hire and employ a physician to treat Jackson, AEG undertook to act, and it needed to do so reasonably. AEG did not act reasonably and breached its duty.
  • During the course of Murray’s treatment, it became clear to AEG that Jackson was not doing well at all. AEG did nothing to terminate Murray and instead negligently retained him as an employee, and in so doing violated its duty of care.  AEG insisted that Jackson continue treatment with Murray and receive no treatment from other physicians, a further breach of its duty of supervision.

Along with negligent hiring, training and supervision, the complaint calls for unspecified damages for breach of contract, fraud, and negligent infliction of emotional distress. The matter is still pending in court.

According to ‘The Safe Hiring Manual – How To Keep Criminals, Terrorists, and Imposters Out of Your Workplace’ by Lester Rosen, founder of San Francisco area background check firm Employment Screening Resources (ESR), every employer carries the obligation – the duty – to exercise reasonable care for the safety of others when hiring. The legal description of the duty of care – “due diligence” means the employer must consider if a potential new employee represents a risk to others in view of the nature of the job.

If an employer fails to exercise due diligence in the hiring process and a person is harmed by an employee, that employer can be sued for damages in a civil lawsuit for failure to perform a legal duty. The name of the legal action is called “negligent hiring,” which is the flip side of “due diligence.” If an employer hires someone who they either knew or in the exercise of reasonable care should have known was dangerous, unfit, or not qualified for the position, the employer can be sued for negligent hiring if injuries or death occur.

While most employers obviously will not hire applicants they know are dangerous or unfit for a job, it is the “should have known” part that gets employers into difficulties.

For more information about due diligence and negligent hiring, visit the Employment Screening Resources (ESR) website at http://www.ESRcheck.com.


Statistics and employment screening background checks

By Les Rosen, Employment Screening Resources

In an article on background checks posted on  Workforce Management in January, 2010, it was suggested  that “Employment and criminal checks also do little to screen out those who commit fraud.”  The reason is that statistics from a  2008 report by the Association of Certified Fraud Examiners based on 959 cases of workplace fraud showed that  Only 7 percent of fraud perpetrators have prior convictions, and only 12 percent have been previously terminated by an employer for fraud-related conduct. 

This is a good demonstration on an often use quote about statistic:  “Do not put your faith in what statistics say until you have carefully considered what they do not say.”  

The article overlooks a critical fact that the use of screening keeps would be embezzlers out of a positions of trust where they handle finances in the first place.  Fraud professionals certainly recommend background checks because it is the first line of defense that keeps former embezzlers out of positions of trust in the first place. As professional screeners, Employment Screening Resources (ESR) has saved many organizations from hiring former embezzlers and thieves for positions of trust  involving finances. However, there is no way to measure the numbers of frauds that are averted due to background checks.  The argument in Workforce is  like arguing flu shots are worthless because people who get the flu shots may still gat a flu.  An accurate assessment of the viability of a tool needs to include what would have happened if the tool was not used.  

The article goes on to suggest that screening for criminal convictions may also be ineffective in reducing workplace violence. That is because, according to the article, contrary to popular belief, the majority of workplace violence incidents are not committed by new hires with criminal convictions. Instead, they result from robberies committed by perpetrators from outside the firm, according to the Bureau of Labor Statistics. 

The suggestion that because most workplace violence is external shows screening of applicants is ineffective is equally illogical.   Screening is used to screen the workforce.  Even if employee violence is not the major cause of workplace violence, it is still a  significant cause.   Experts agree that a common denominator behind many acts of workplace violence by employees is a prior history of violence. That is certainly not true 100% of the time, but it is significant factor. 

Suggesting screening is not effective because outsiders cause the majority crimes is like arguing that healthy habits are a waste of time because sometimes a healthy person comes down sick anyway. When there is an act of workplace violence that could have been prevented by screening that results in a lawsuit against an employer, it is doubtful that any jury will buy that argument suggested in the Workforce article.    To the injured worker, or the to the family of someone killed by an act of preventable workplace violence by an employee, the suggestion that screening is a waste of time will certain ring hallow. 

This argument brings to mind another quote about statistics: “Then there is the man who drowned crossing a stream with an average depth of six inches.” 

Once again, statistics can lead down a very wrong road.

The  Workplace article is at: http://www.workforce.com/archive/feature/26/21/11/index.php (may require sign-up and log-in)

For more information on why background checks are mission critical tool for employers, see www.ESRcheck.com

2010 Trend on more lawsuits including class action litigation over accuracy, privacy, and consumer rights

By Les Rosen, Employment Screening Resources

2010 Trends in Screening–Trend Two:

Employment Screening Resources (ESR), a leading national online employment screening background firm, is releasing the ESR “Third Annual Top Ten Trends in the Pre-Employment Background Screening Industry” for 2010.   This is the SECOND of the ten trends ESR will be tracking in 2010.  The ten trends will be released over the next three weeks:

2.  More lawsuits including class action litigation over accuracy, privacy, and consumer rights: 

News stories in 2009 blasted the screening industry for inaccurate reports, and it appears that lawsuits are on the rise and will continue in 2010.  It is not surprising, since screening has become a large industry, and enough people have been the subject of screening reports that the whole area has come to the attention of plaintiff’s lawyers.  In addition, 2009 saw class action lawsuits for violation of the procedures under the FCRA, and there is every reason to believe that screening firms and employers can expect more of the same.  The bottom line is that a Background Check is a highly legally regulated professional service, and it is important to ensure that a supplier of this service understands the legal framework and, further, approaches the screening process as a professional service, and not just as a data provider.

Employee Problems are Caused by Problem Employees

Question from the mailbox:  Is performing background checks worth the time and effort it takes?     

Answer:  For employers that do not perform background checks, one of the most frequently asked questions is why do it?  The short answer is that employee screening is one critical way to keep problem employees out of the workplace.  As any employer or human resources professional know, a great deal of time is spent dealing with employee problems. As Employment Screening Resources (ESR) advised  employers in the first edition of The Hiring Manual back in 2005, “problem employees usually cause employee problems.”  An employer is certainly ahead if they can try to minimize the problem employees in the first place. 

Of course, there is no perfect system to prevent bad hires.   Background checks alone are not going to keep an employer from hiring people they later regret having in the workforce.  The hiring process has a number of moving parts, but the background check is the critical final step. 

In addition, the cost if a background check will typically be less than the cost of that new employee on his or her first day on the job. That is pocket change compared to the damage one bad hire can cause. It is ironic that some firms will spend hours shopping for a computer bargain yet at the same time try to save money by not adequately checking out a job applicant, even though each hire  represents an enormous investment and potential risk.   

Nor is it difficult to set up a screening programming. Even for an overburdened HR, security, or risk management department already handling numerous tasks, outsourcing background screening can be done very quickly and effectively. ESR can set up the entire program, provide all the necessary forms in a short time and assist with legal compliance.

Defenses That Do and Do Not Work in Negligent Hiring Cases

If an employer is sued for negligent hiring on the basis that they hired someone that they either knew or in the exercise of reasonable care should have know was dangerous, unqualified, unfit or dishonest, and it was reasonably foreseeable that some of harm could occur, an employer can be sued for negligent hiring.  That is the opposite of due diligence.  If the subject of a legal action, employers do have some potential defenses in a court case, but they are far from a sure thing.

The best defense is that the employer did in fact exercise due diligence and reasonable care, but despite those best efforts, a bad hire fell through the cracks. An employer would have to show that they took a number of steps designed to avoid bad hires. An employer can review the adequacy of their hiring efforts by taking the safe hiring audit offered by ESR. See: http://www.backgroundchecktraining.com/Safe-Hiring-Audit.asp

Another defense that had been successful is that the crime or injury was too remote or unconnected from the employer’s negligence, or was not foreseeable. An example is the California case ESR recently reviewed where a plumber with a criminal record was hired, meet a woman on the job that he started dating, was terminated by the employer and then murdered the girlfriend two years later. The victim’s family’s argued that but for the negligent hiring, the two would not have met in the first place and the murder would not have occurred. The court found that the murder two years later and long after termination was not sufficiently connected to the hiring to hold employer legally responsible. See: http://www.esrcheck.com/newsletter/archives/September_2009.php#T1

Another defense that a background checks would have not have revealed anything anyway so that the employer’s failure to conduct an adequate pre-screening was not the cause of the injury.  As the old adage goes, “every dog has its first bite.”  If there was nothing for a background check to locate that was a potential a “Red Flag,” that is also a defense.

Some defenses that do not work? Employers have not been very successful in defending lawsuits on the basis that due diligence and background checks cost too much, especially considering how inexpensive it is to screen. Another argument that may not go far with a jury is that the employer did what every other employer did in their industry. The fact that all employers in an industry engage in the same practice does not mean that the employer has meet the legal duty of due diligence, since a “standard practice” is not the same as a “standard of care.” The least successful defense is the argument that the employer is also the victim as well, or that they were victimized by an applicant lying.

The bottom-line: Exercising due diligence in hiring and conducting background checks is a small price to pay to avoid the “Parade of Horribles” that can befall an employer that makes bad hiring decisions.

Due diligence risk management and Employment Screening

In the April, 2009 ESR Newsletter, ESR reported on a case in Ohio where a negligent hiring lawsuit was filed on behalf of a sleep clinic patient that was sexually molested by a staff member.  http://www.esrcheck.com/newsletter/archives/April_2009.php.  The article reported that a technician was facing gross sexual imposition and sexual imposition charges for allegedly molesting five victims.  The lawsuit “accuses the sleep clinic of negligence for hiring (the worker) and failing to properly supervise him.”  

Another sleep clinic case, this time from California is now in the news.  According to a story in the Monterey County Herald, a sleep technician was accused of sexual misconduct and the case eventually resulted in a no contest plea to a battery charge.  The case even lead to a new law in California that regulated workers in sleep clinics and required them to pass background check.  See:  http://www.montereyherald.com/local/ci_13864096 

These stories demonstrate a fundamental fact of life for employers. In deciding how extensively to perform background screening, employers need to consider the risks involved.  Patients in a medical facility are highly vulnerable and therefore at greater risk. Presumably, patients at a sleep clinic are even more vulnerable since they are there to sleep.

Examples where employers may have an increased duty of care are: 

  • The workers have contact or responsibilities with groups at risk, such as the young, infirmed, or elderly.
  • Jobs such as a security guard, where a person acts under a “color of authority.”  A person who wears a uniform is even a higher risk since a person may assume they have authority and may let their guard down. 
  • Jobs with special responsibilities such as an apartment manager that has the master key to all of the apartments.
  • Jobs where a worker has access to sensitive consumer information, such as credit card numbers or Social Security numbers.
  • Jobs where by statute, there is particular sensitivity.  An example can be safety sensitive positions such as workers at nuclear plants.  Sarbanes-Oxley compliance is another area where that may create a higher duty of care.
  • Jobs where workers enter homes, or where other unique risks exist.  A person in their own home can be extremely vulnerable since they are shielded from the public and cannot obtain help easily.  In fact, an organization called the Sue Weaver Cause advocates greater due diligence where workers enter homes.  According to their website:
    “August 27, 2001, Sue Weaver was brutally raped and beaten to death by a twice convicted sex-offender hired to do service work in her home. Sue had contracted with a major department store to have the air ducts in her home cleaned.  (The department store) did not conduct criminal background checks on those workers they sent into their clients’ homes.”   For more information, see:  http://www.sueweavercause.org/  

To review the risk management considerations for your screening program, contact Jared Callahan at 415-898-0044 or e-mail him at jcallahan@esrcheck.com

Screening Vendors and Temporary Workers

A recent article in the SHRM 2008 Staffing Management Library underscores the need to screen even temporary hires.  Although many employers have well thought-out programs for their regular employees, temporary employees from staffing firms, 1099 workers or vendors pose similar risks.  The article explained why screening temporary employees is critical, and offers suggestions on how a firm can protect itself.

The article also quotes ESR President Lester S. Rosen: 

“Even if you have a person on a short-term assignment, you’re exposed,” added attorney Lester S. Rosen, president and CEO of the Novato, Calif.-based firm Employment Screening Resources. “They have the keys to the kingdom. Once they’re inside your building, they have access to your files and have the potential to do great harm.”

Rosen said that while staffing vendors “have traditionally not engaged in a great deal of screening because it slows down the placement time and adds to the cost,” they need to understand that they have “a huge risk” if they send unscreened employees to a workplace.

“They have to realize that every placement they make is potentially a game of Russian Roulette that can put them out of business,” he explained. “If you’re a staffing vendor, it only takes one bad hire to lose your reputation, lose a client and [potentially to] get sued.”

And even though an extended worker may be getting a paycheck from the staffing vendor, under “co-employment” law, employers may still be at risk of a negligent hiring suit if something goes wrong.

“If [temporary employees] cause a hostile workplace, hurt a member of the public or attack a co-worker, arguably employers are just as liable as they would be if this were a full-time, regular employee,” Rosen said.

The fact that the staffing vendor said it did background checks may not be much of a defense for an employer if the check was inadequate or ineffective. For this reason, it pays to do adequate due diligence to head off any potential lawsuits down the road.

After all, Rosen said, “Even the CIA will, every so often, hire a spy or a crook.”

The article discusses the need to evaluate the risks involved in utilizing an extended workforce and to develop an appropriate screening program.  The screening may be performed by the same firm that checks new applicants.  If done by the staffing vendor’s firm, then the employer can require that the same protocols be used that it uses internally. 

For a full copy of the article, see http://www.shrm.org/ema/library_published/nonIC/CMS_024438.asp#TopOfPage

The Use of Home Operators

Some screening firms use home based operators to perform employment and education verifications.  That of course represents a big financial advantage for the screening firm.   They get cheap labor, and may even classify them as independent contractors in order to get even additional savings by not paying workers’ compensation, benefits or other costs associated with employees.    However, it does very little to help employers.  Below are the top 10 reasons NOT to utilize a background firm that sends your applicants’ personal data to home operators working from kitchen tables and dorm rooms across America.


  1. Privacy: A screening firm would be directly responsible for making private information viewable and printable on people’s home computers.
  2. Professionalism: A screening firm would have difficulty accurately claiming that at-home researchers are “professionals” when they are unsupervised, unregulated and acting as cheap substitutes for what is supposed to be a professional service. Ask yourself how the sound of barking dogs, crying babies and television sets in the background may strike those asked to provide verifications.
  3. FCRA Defensibility: A screening firm would  have difficulty defending the practice of using at-home researchers against a claim under FCRA section 607(b) concerning reasonable procedures for accuracy.
  4. IC Classification: A screening firm cannot classify someone as an Independent Contractor (IC) when they work only for you, when you tell them exactly how to do their job, and when they are providing the same core services provided by your in-house staff.
  5. Training/QC: A screening firm cannot train and discuss production issues in real time. It is also difficult for at-home researchers to learn from each other when everyone is working in isolation. Furthermore, since everyone works alone it is harder to enforce quality rules across the entire organization.
  6. Supervision: Unsupervised at-home researchers are very difficult to supervise. In addition, since they are paid by the completed verification, they may be more tempted to fake orders since there is no one supervising them in real-time.
  7. Reliability: A screening firm would  be dependent entirely on the researcher’s priorities, which may not be your own. They may put a hair appointment ahead of your forty new verifications that have to be called today. You want load balancing to be under your control and not secondary to at-home researcher’s personal schedules.
  8. Hidden Costs: There are hidden costs to managing and maintaining multiple remote researchers as opposed to a central pool of talent. Take, for instance, the time lost to the unreliable performance of at-home researcher’s internet connections, home computers and printers.
  9. Due Diligence: A screening firm and employer could face significant legal exposure if the  at-home researcher’s performance falls below a professional standard of care due to lack of training and supervision.
  10. Disclosure: Would you want to disclose to your applicants that the sensitive, personal data and professional service they’ve entrusted you with was being performed by unsupervised home workers?


ESR does not utilize any home based or offshore operators in order to  provide you with critical employment and education verifications.  All work is done in a professionally supervised call center dedicated to the highest level of customer service, privacy, accuracy and speedy turnaround time.