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Lessons From Domino’s Pizza: Part III Negligent Hiring
By: Donna Ray Berkelhammer. This was posted Tuesday, April 21st, 2009
Loading ...This blurb on the Domino’s pizza mess caught my attention because of the second comment:
BioTech0296 wrote: if the owner/franchisee hired these morons, then he is responsible for their actions..NO EXCUSES!!!!
After two renegade Domino’s pizza employees posted viral “joke” videos on YouTube of them defiling sandwiches, Domino’s President Patrick Doyle announced the franchise will re-examine all of the corporate hiring practices to “make sure people like this don’t make it into our stores.”
What he’s getting at is avoiding negligent hiring and retention.
North Carolina courts typically recognize a tort claim for an employer’s negligent hiring or retention of employees where a plaintiff (victim) can establish: (1) a specific bad act by the employee in question; (2) the employee’s inherent unfitness or previous specified acts of negligence from which incompetence can be inferred; (3) the employer’s actual or constructive notice of the employee’s unfitness; and (4) injury resulting from such incompetence.
This is important to employers because it brings liability from the wrong-doer (employee) to the employer, who typically has “deeper pockets” and is a more attractive defendant in a lawsuit.
Typical examples of negligent hiring are hiring a bus driver with numerous traffic convictions, a controller with convictions for embezzlement or day care workers who are convicted sex offenders. Negligent retention is keeping these employees in position after you know about the traffic violations, embezzlement or sex crime. In these cases, a routine background check often reveals the initial unfitness for the job.
Courts will look at the fundamental questions of what did the employer know about its employees and when did it know. They will compare the employer’s hiring and retention practices to the industry standard and will determine if the employer used reasonable care.
North Carolina courts generally defer to employers on this issue, holding that there is an initial presumption that an employer uses due care in hiring employees, but this presumption can be overcome where a court finds that an employer ignored facts that would suggest that an employee is unfit or failed to follow customary hiring practices for its industry.
At a minimum, it is important to keep up with HR/hiring/retention practices in your industry. Employers should also consider implementing procedures for verifying facts given on resumes or applications, verifying and documenting employee references, using criminal background and credit checks for final job candidates, and pre-hiring drug tests (if appropriate) regardless of industry custom.
These areas are fraught with their own perils, such as improperly considering arrests instead of convictions, not complying with the Fair Credit Reporting Act or not following state drug testing laws, but a claim for negligent hiring could carry a much higher liability. See the above comment for an example of just how much you have to lose when you hire the wrong people.
Tags: background checks, deep pockets, Domino's, Domino's video, drug testing, employees, employers, franchise, hiring practices, negligent hiring, North Carolina courts, reference checks, tort claim, viral video
