What is “Negligent Hiring?”

When a nonprofit brings a new staff member on board, paid or volunteer, the worker becomes the “agent” of the nonprofit. Should that worker subsequently cause harm to a co-worker, client or third party, the employer may face a claim alleging negligent hiring. Typically a claim of negligent hiring will allege that if the employer had engaged in more due diligence when screening the worker, a history of similar conduct would have been revealed which should have disqualified the worker from consideration.

In order to state a claim of negligent hiring successfully, the injured person must show:

1. That the employer did not exercise reasonable care in hiring the worker (example: the employer did not meet the minimum standard of care, such as by conducting a criminal history records check or reference check);
2. That the employee had dangerous tendencies, such as a record of unsafe driving, which should have been apparent if the employer had exercised reasonable care in screening (example: the employer did not have a policy to check the motor vehicle records of staff with driving responsibilities; and
3. That the employer placed the employee in a position where others could be injured.

   A nonprofit can never prevent an unhappy litigant from filing a lawsuit; however, every organization can strive to demonstrate that it acted reasonably to protect those under its care from harm. Doing so starts with adopting and following sound screening policies. Screening policies and protocols should be designed around the risks of the positions the nonprofit seeks to fill, with the understanding that since some positions expose the nonprofit to greater risk, customizing the screening process is required. An additional component of defending negligent hiring claims is being able to show that as soon as the nonprofit received information calling into question the suitability of the worker for his or her position, it acted reasonably to protect the safety of others.

To fortify your nonprofit to defend a claim of negligent hiring (or negligent retention), consider:

1. Adopting or updating your screening policies and procedures to ensure that all volunteers and paid staff are appropriately screened based on the risks associated with their positions and assignments in the nonprofit. For positions in which the worker regularly or occasionally provides unsupervised (e.g. one on one) service to vulnerable clients, the screening process should be thorough. While there is no legal definition of thorough screening process, such a process likely includes conducting a criminal history records check, checking references, confirming professional/volunteer work history and verifying educational degrees conferred.
2. Ensuring that all candidates for the same position are subject to the same screening process. For example, when you select four finalists for in-person interviews, those finalists should be asked the same questions. If a background check will be part of the process, it should be conducted for all candidates who are finalists.
3. Taking time to document the extent of the screening process for the position and the results of each recruitment process.

Particularly in cases where the allegation is that the nonprofit “negligently retained” a worker, it is critical for the nonprofit to show that as soon as the nonprofit had information, such as a complaint, that the worker was not acting appropriately, the nonprofit conducted a prompt and thorough investigation leading to a determination about the worker’s continuing eligibility. Documentation of the investigation will be critical in the defense of the nonprofit’s case.

For more information about screening techniques, or assistance establishing the right policies and evaluating your nonprofit’s screening procedures, contact Nonprofit Risk Management Center at (202) 785-3891.