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 Stephen
O'Connor, SPHR, is senior director of Professional Search Services
for the MHA Service Corporation, Lansing, and can be e-mailed at
soconnor@mha.org |
Staff
Matters Newsletter
November/December 1998 |
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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. (See sidebar.) 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." Sidebar: 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
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