Sadly in the news this month was the death of a 7-year-old girl, allegedly killed by a FedEx delivery person/driver, who was in fact a subcontractor working for a third-party company. The result has been a lawsuit filed by the family of the deceased girl against both FedEx and the third-party subcontracting company (that actually employed this delivery person/driver).
Although the lawsuit has not yet been adjudicated, it is a reminder that companies can be held liable for the actions of their employees as well as their sub-contractors. When a company hires a sub-contractor, the hired individual is representing the company. It makes no difference whether the legal status of the hired person is that of a W-2 employee, or that of an independent contractor.
Courts and the public have traditionally viewed these individuals, i.e., subcontractors, as representing the company for which they appear to be working. Clearly most of the media reports regarding the death of this 7-year-old girl are focusing on “a FedEx driver.” Regardless of what the courts ultimately decide, the negative press has already occurred.
One of the best defenses against Negligent Hiring and Retention Liability lawsuits, is to perform a “best-practices” pre-employment background check. “Best- practices” means that you not only do a criminal database search, but you also perform county criminal records searches in all the counties where a person has lived over the last seven years ‒ and also check for all legal names the person has used. This is due to the lack of social security numbers on most criminal records, thus requiring checking each legal name. For example, a crime committed under a maiden name will not be found, if only the current married name is being searched.
To help protect your company against Negligent Hiring lawsuits, seek out a reliable background screening company that is also a consumer reporting agency (CRA). Additionally, be sure to insist on obtaining a “best-practices” background check. The money spent on this type of background check will greatly pale in comparison to the cost of training and paying compensation to someone you “never should have even hired.”
Posted by: Rudy Troisi, L.P.I., President and CEO, Reliable Background Screening
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