by
Stephen O'Connor
Recent
political events in the news and the seemingly endless, evasive
wordsmithing
in our legal system suggest that the ancient practice
of lying has been elevated to an art form.
Telling the truth
has often been reduced to semantical compliance with factual
definitions.
And
a lie? Well, that’s a relative thing, isn’t it? If
Einstein were researching his theory of relativity today he may
have decided that E=MC2 really meant, “Ethics=My Concerns
Squared.” Almost all lies are perpetrated to make us look
good or to avoid dealing with an unpleasantness. Some of my favorite
lies are ones you’re familiar with. The bill lie: “How
about this, you pick up the bill this time and I’ll get it
next time?” The haircut lie: “No, really, that’s
a great haircut. I mean it.” The weekend
lie: “Oh, no this weekend is bad for me. I have company
coming.” Then there’s the classic principle lie: “It has nothing
to do with the money. It’s the principle of the thing.”
While
spinning the facts to approximate truth may be an acceptable practice
in politics (and in your kid’s homework status, “I
did it all at school in study hall, honest, really, why are you
looking at me like that?”), it can be very harmful to our
organizations when it manifests itself in the people we hire. Our
ability to be lied to is where much of our liability lies. Accepting
information from our potential hires and believing what’s
on their resume, without exercising our due diligence duty, is
like believing that the dog really did eat his homework. The theories
of negligent hiring and negligent retention have been well-articulated
by Kevin M. McCarthy, Esq., from the law firm of Miller, Canfield,
Paddock and Stone, PLC. McCarthy tells us that courts in 30 states
have recognized a tort claim of negligent hiring or negligent retention
of an unsafe employee.
A
claim of negligent hiring or retention is established when:
- the
employer knew, or through a reasonable investigation should have
known, of the employee’s or applicant’s unfitness
for the job
- a
person to whom the employer owes a duty of protection is injured
- there
exists a casual connection between the injury and the employment
of the unfit person
Basically,
according to McCarthy, an employer is held to a duty to use reasonable
care to hire safe and competent employees. (Henly v. Prince
George’s County, 503 A2d 1333 Md. 1986.) The legal standard
McCarthy refers to states, “In order for a plaintiff to establish
liability because of an employer’s negligent hiring or retention
of an employee, the plaintiff must demonstrate (1) that the employer
owed a duty to the victim, (2) that it breached that duty, and
(3) that the breach of duty was the proximate cause of the plaintiff’s
injuries. Don’t worry about what “duty to the victim,” “breach
of the duty” and “proximate cause” mean. That’s
what your lawyer is for. Just remember that you’re suppose
to know, with some reasonable confidence, who you’re hiring
(and who you’re allowing to stay).
Background
checks, reference checking, pre-employment testing, drug screening,
new hire referrals from current employees, and second and third
interviews are all ways to exercise careful due diligence in the
hiring process. These are very time-consuming, to be sure. But,
so is sitting in a courtroom defending a negligent hiring case.
Remember, as Frank Lloyd Wright said, “The truth is more
important than the facts.”
This
article originally appeared in the November/December 1998 issue
of Michigan Health & Hospitals magazine and is being
used with permission.
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