How to Protect Yourself from Negligent Hiring:

On Monday, April 22, 2002, a large retail department store that operates several locations throughout Florida, and also offers in-home services such as television and appliance repair and duct cleaning, was sued for negligent hiring. The suit alleges that the company failed to conduct a background check of an air-conditioning contractor, who allegedly murdered a customer, and, therefore, violated Florida’s negligent-hiring statute, which gives employers protection from negligent-hiring claims as long as companies perform a background investigation of employees. A record check of the contractor’s background by law enforcement revealed that the contractor had served 12 years in prison for rape.

In order to reduce their liability for negligent hiring lawsuits, employers should implement background investigations of their employees and contractors in accordance with Florida Statute 768.096 - Employer Presumption Against Negligent Hiring. The investigation should include a criminal background check, a reference check, completion of a job application that inquires into prior criminal convictions, a driver’s license check (if applicable), and an interview.

For your information, the following is Florida Statute 768.096 verbatim:

(1) In a civil action for the death of, or injury of damage to, a third person caused by the intentional tort of an employee, such employee’s employer is presumed not to have been negligent in hiring such employee if, before hiring the employee, the employer conducted a background investigation of the prospective employee and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for the employment in general. A background investigation under this section must include:

(a) Obtaining a criminal background investigation on the prospective employee under subsection (2);

(b) Making a reasonable effort to contact references and former employers of the prospective employee concerning the suitability of the prospective employee for employment;

(c) Requiring the prospective employee to complete a job application form that includes questions concerning whether he or she has ever been convicted of a crime, including details concerning the type of crime, the date of conviction and the penalty imposed, and whether the prospective employee has ever been a defendant in a civil action for intentional tort, including the nature of the intentional tort and the disposition of the action;

(d) Obtaining, with written authorization from the prospective employee, a check of the driver’s license record of the prospective employee if such a check is relevant to the work the employee will be performing and if the record can reasonably be obtained; or

(e) Interviewing the prospective employee.

(2) To satisfy the criminal-background-investigation requirement of this section, an employer must request and obtain from the Department of Law Enforcement, a check of the information as reported and reflected in the Florida Crime Information Center system as of the date of the request.

(3) The election by an employer not to conduct the investigation specified in subsection (1) does not raise any presumption that the employer failed to use reasonable care in hiring an employee.