Negligent hiring is a relatively new idea in the law. The idea creates liability for an employer where the employer hired someone whom, if they had performed their duty of due diligence, they would have never hired, and yet that person caused an injury that occurred as a result of their employment. This creates important issues in potential lawsuits that will be explained below.
What Is Negligent Hiring?
Negligent hiring is, as is stated in the name, a tort based on the negligence of the employer. It is a tort that is used when an employer fails to use due diligence in the hiring of an employee, who then proceeds to injure a third party in the course of their employment. It is must be noted that, although this is a negligent tort, the injury to the victim must be caused by the intentional action of the employee. It does not cover negligence on the part of the employee. There is an entire other theory of law under which this falls (called respondeat superior).
Florida’s Negligent Hiring Statute
Florida law gives an employer the presumption that they have done their due diligence in hiring someone if they perform an adequate background check pre-employment. The criminal background check must be completed by the Department of Law Enforcement. Further, to create the presumption, in hiring the person the employer must:
Have the candidate fill out an application and answer questions that ask if the person has ever been convicted of a crime (including type, date of conviction and the penalty imposed) and if the person has ever been a defendant in a civil proceeding for an intentional tort (including the type of intentional tort and the outcome of the case);
Make a reasonable effort to contact the references supplied by the applicant;
Make a reasonable effort to contact previous employers as far as suitability of the applicant for employment;
Check the driver’s license record of the prospective employee if the check would be relevant to the type of work that will be performed by the employee if hired; and
Interview the person.
In short, if an employer follows these steps, it will create a legal presumption that the employer did their due diligence. If they do not follow these steps, unfortunately, there is not a corresponding presumption that they were negligent.
Why Is Negligent Hiring Important If You Are Injured?
Injuries caused by intentional torts are not typically covered by insurance. Most individuals don’t have the finances to recover a substantial judgment that will actually ever be paid out since insurance does not apply. Injuries caused by negligence usually are covered by insurance. For example, if a person breaks into your home and injures you, you can sue him for assault and battery. If you obtain a judgment, you will only recover money if the person has the ability to personally pay you. If the same person works for Acme Moving and decides he wants to break in and steal your stuff while at work and you get hurt, you can still sue him and have the same problem getting paid your damages. However, you can also sue Acme Moving as well if they either knew or should have known that the person in question had such proclivities in the past and this information should have been discoverable. They will have insurance and you stand a much better chance of actually getting paid any judgment you receive.
Negligent hiring can be a tricky thing to prove. Florida has already stacked the deck against plaintiffs by giving employers the chance to earn a presumption that they did not act negligently. The skilled professionals at Fasig & Brooks have years of experience getting personal injury victims in the Tallahassee area the results they deserve. If you have suffered an injury that could have been prevented if an employer had done a proper background check, you may have the ability to recover for negligent hiring. Give us a call at (850) 222-3232 to set up your free consultation today.