Negligent Retention:
Is Ongoing Background Checking Necessary?
November 2007

The family of a 64-year-old Virginia woman killed in an ambulance crash filed a $13 million lawsuit against the county and four county employees, including the driver of the ambulance. The family claimed the county was negligent in hiring the driver, whose background showed numerous moving violations, including reckless driving and driving while impaired.

A lawsuit against a school district claimed that it was negligent during and after hiring a teacher-coach later convicted of sexually assaulting a student. The lawsuit claimed the school district did not appropriately investigate reports of inappropriate conduct.

Lawsuits Rise

The number of lawsuits for “negligent retention” has increased dramatically, underscoring the need for a thorough process of evaluating employees, not only in the hiring process, but also during their tenure with your organization.

In fact, according to a recent survey of large companies by Taleo Corporation, a workforce-management firm based in Dublin, CA, (Background Checking: Uncovering the Facts — www.taleo.com/research/):

• 27% experienced fraud, employee theft, or workplace violence by a screened employee with a hidden criminal record.
• 81% do not consider their current background check process effective.
• 71% have not performed a quality audit of their current screening provider.
• 66% do not conduct ongoing background checks on employees.

Ongoing Evaluation

A background investigation that helps bring the right person into the organization in the first place is obviously important. But there are also significant reasons to conduct ongoing evaluations to ensure that employees without problems in their background remain employees without problems.

Cases of “negligent retention” involve employers who have been found to be negligent in conducting reasonable investigations to determine employees’ fitness to continue performing their jobs. To avoid these problems, consider reviewing current practices — always in consultation with your legal advisers — to determine if you are taking appropriate steps to evaluate an employee’s ongoing fitness for duty. If not, you may want to introduce a process of evaluating employee backgrounds throughout their tenure with your organization.

Taleo’s Alice Snell says she is seeing an increasing number of companies interested in conducting ongoing background checks.

The decision to do so isn’t necessarily easy, she notes, as there is always a concern about privacy violation. On the other hand, organizations have a legitimate need to know whether someone who was originally a terrific match for the organization is no longer a good match and may, in fact, be a ticking time bomb. Being vetted, not only upon initial entry into the company, but on an ongoing basis is essential to this, she says.

Introducing Ongoing Background Checks

• Develop a background checking policy: how, when and for which positions they will be conducted. “Most people assume that once they’re in, they’re in. If your policy is clear and you explain the ‘why’ behind it, I think most people will understand,” says Alice Snell of Taleo Corporation.
• Make sure employees are fully aware of the policy. “I don’t think it’s a particular threat to employees as long as they are aware of what the policy is and that it benefits everyone,” Snell says, pointing to growing incidents of workplace violence as an area of particular concern.
• Ensure that all information is treated confidentially. This is as important with existing employees as with potential hires.
• Arrange a legal review of the process and policy from your legal counsel.
• Partner with a credible background-checking organization to ensure that the process is applied appropriately and consistently and that documentation is thorough and complete.

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