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Don't Let Temporary Workers Leave You with a Permanent Problem

By Toolkit Staff | March 23, 2015

As the calendar and the weather show signs of change, many American companies turn to seasonal employees to help ease their increasing workload. But could using those workers have a negative effect on business that is anything but temporary?

The uncertain economy and the seasonal need for workers have employers scrambling to fill positions. According to the Bureau of Labor Statistics, the national unemployment rate has been hovering at around 5.5 to 6 percent for the last 12 months or so. In addition, millions of job descriptions continue to evolve in this information-age economy. This combination has made good help even harder to find.

But in the haste to make that hire, employers need to be sure they don't overlook important steps in the recruiting process. A mistake here could potentially leave businesses open to charges of negligent hiring down the road--should something go wrong.

Those businesses with employees who have or will have significant contact with the public, customers, patients or children need to be especially vigilant. For these operations, the keys to avoiding such litigation are careful research and thorough documentation.

A company can be legally liable for negligent hiring if it fails to uncover a job applicant's unfitness for the job because it did not check references, criminal records or general background. If an unfortunate incident such as a crime or a serious accident involving this employee takes place, the injured party can sue and possibly recover damages as a result of the employee's actions.

Although state laws on negligent hiring differ, generally speaking, in order for a suit to prevail, an employee's unfitness must lead to an act or an omission causing the incident in question, and the employer's negligence in hiring the employee must be seen as a cause of the incident.

The best way to protect yourself from charges of negligent hiring is to do a thoroughly documented background check of all potential employees. You need to show that you made a reasonable effort to uncover any unfitness in the applicant's past history.

For employers of 15 or more, employment application and reference check records must be kept for at least one year, even for the applicants you don't hire. These records should contain a list of all references checked, including who was contacted and what was discussed; proof of unsuccessful efforts to gather information from references or other sources; and copies of all actual records received, such as credit bureau checks and driving records. A checklist for completing these tasks can be found in the "Business Tools" section of the Business Owner's Toolkit.

In some cases, a criminal check may be necessary, and this can be a sensitive issue. For the most part, checking conviction records is allowed under federal and state law; checking arrest records is usually not permitted.

Employers should be careful not to violate criminal background check laws that restrict the use and disclosure of such information, or that require you to check conviction records in order to comply with regulations governing your industry or the type of position you're filling. Also, because conviction records can cover an array of behavior and can sometimes unfairly affect certain groups of people, be sure to comply with antidiscrimination laws, both federal and state. More information regarding these hiring practices and others may be found in the "SOHO Guidebook" of the Business Owner's Toolkit.

In many situations, the easiest way to check these records is to have a private detective agency do it for you. You also can choose to communicate directly with the state central repository of records, state department of motor vehicles, state and local criminal agencies, and Federal Bureau of Investigation.

If, despite your best efforts, you are served with a negligent hiring suit, you'll need to consult with an attorney right away. Generally, you'll need to prove that there was nothing wrong with your employee or that you had no way of knowing there was something wrong with your employee.

So be sure you've taken the proper steps during the recruiting process. First of all, it could prevent you from hiring an unfit temporary employee who leaves a permanent mark on your business. Moreover, if in the future something unfortunate does happen, it will be easier able to prove that you are, and always have been, a conscientious employer.

Office & HR

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