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Wednesday, August 27, 2008

Background check protects employer from negligent hiring claim

A claim of negligent hiring requires proof of five elements under Ohio law:

  1. the existence of an employment relationship;
  2. the employee's incompetence;
  3. the employer's actual or constructive knowledge of the employee's incompetence;
  4. the employer's act or omission causing the plaintiff's injuries;
  5. the employer's negligence in hiring or retaining the employee as the proximate cause of the plaintiff's injuries.

Prewitt v. Alexon Services (Butler Cty. 8/25/08) concerns an employee who was raped by a co-worker. When Alexon hired the co-worker, it conducted a background check that revealed a misdemeanor disorderly conduct conviction, but not past history of sexual assault or abuse. Prewitt claimed that Alexon's screening was negligent because it did not conduct any additional inquiry or investigation to discover that the disorderly conduct conviction was sexual in nature. The court disagreed, finding that Alexon was entitled to rely on the results of its background check.

No applicant vetting process is perfect. Applications ask for criminal histories, and some companies go one step further by actually ordering a background check. At that point, what else can a company do? The transaction costs associated with a typical background check are high enough. If every employer had to investigate every conviction that shows up on a report to discover its underlying facts, the hiring process would grind to a halt. Thankfully, the court in Prewitt realized that reasonable steps taken by an employer deserve a reasonable result - in this case, the dismissal of the claim against the employer.