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Keeping out of court.

BETWEEN A ROCK AND A HARD place: an old saying that most of us have heard, if not said, many times over the years. To most people the phrase means a situation in which one faces few real choices. Such may be the case in hiring new employees.

Selecting persons to become new employees is a major concern for all organizations. Businesses must attempt to acquire the best-qualified, potentially most productive individuals possible. The recruitment and selection process is time-consuming and costly, whether a company uses professional agencies to screen applicants or does the task on its own.

Matching an applicant's education, background, and experience with the demands and requirements of the position is crucial. A wrong choice in the selection process may prove costly in a number of ways, forcing the employer to go back through the process a second time. The economics of today's business environment are unforgiving and do not often allow second tries.

A major reason to use due care in selecting employees is the employer's potential legal liability to third persons injured by the employee's actions. For a long time the law has imposed a vicarious liability on an employer for an employee's negligent actions that caused injury to an innocent third person. The employer has been held liable to compensate the injured third party-that is, to pay money damages.

The employee's acts at the time the injury was caused must generally have been within the course and scope of the employment for the employer to be held liable. (What is or is not within the course and scope of employment has been the subject of much litigation.) Even though the negligent act or acts of the employee caused the injury, under the legal doctrine of respondeat superior the employer is held liable.

The rationales for that concept are many. in the case of Ira S. Bushey & Sons Inc. v. United States, 398 F.2d 167, the court said that "respondeat superior . . . rests in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. " (The author explores respondeat superior more fully in an article in the May 1987 Security Management.)

Another basis for the legal liability of an employer for acts of employees is negligence by the employer in hiring the individual concerned. Unlike the doctrine of respondeat superior, in which the employer's liability is vicarious, negligent hiring is a direct or primary liability of the employer. The idea is that the employer did not exercise reasonable care in the selection and hiring of the employee, thus potentially exposing others to risk of harm or injury from the individual as an employee. (For more on negligent hiring, see the author's article in the January 1988 Security Management.)

Obviously, an employer cannot know absolutely, in advance, that a prospective employee will later cause injury to third parties. No one has a crystal ball. However, a significant number of lawsuits in many jurisdictions have clearly indicated that an employer should act in a reasonable manner in attempting to determine a prospective employee's fitness and suitability for the anticipated employment. If the employer makes little or no attempt to do so, it may end up a defendant in a lawsuit.

A prospective employee with a poor driving record is a risky individual to hire as a delivery person and put on the road in a company vehicle. Likewise, an individual with a serious criminal record may be a dangerous selection for the position of security officer. The idea is that the employer should make some reasonable inquiry into an applicant's background, qualifications, experience, licensing, and suitability.

A MAJOR DIFFICULTY faces employers today. The trend in law requires employers to inquire more into an applicant's background or else risk later potential liability for hiring an unfit individual who causes harm to a third person. However, at the same time it is becoming more difficult to conduct background investigations.
COPYRIGHT 1990 American Society for Industrial Security
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Title Annotation:Screening for Success supplement
Author:Service, Gregory
Publication:Security Management
Date:Jul 1, 1990
Previous Article:It's all in the cards.
Next Article:I screen, you screen.

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