Florida Adopts Tort Reform To Protect Against Negligent Hiring Claims
January 1, 2000
Most employers know that they can be held responsible for the wrongdoing of
employees acting within the course and scope of their employment. Fewer
employers know that under the theory of negligent hiring, they can be held
liable for the wrongful acts of their employees even if the employees were not
acting within the scope of employment. The negligent hiring theory holds
employers responsible to third parties who are injured by employees when the
employer has failed to carefully select competent and safe employees. The gist
of the claim is that if the employer had conducted a thorough background check,
including a criminal background check, the employer would have discovered
information that the applicant had a propensity toward the type of conduct that
resulted in the injury.
In the Tort Reform Act of 1999, the Florida Legislature provided employers
with a defense to negligent hiring claims so long as they conduct effective
prehiring background checks. The new statute, entitled "Employer
Presumption Against Negligent Hiring," applies to negligent hiring claims
against an employer based upon the commission of intentional torts by an
employee.
The negligent hiring statute creates a presumption that an employer exercised
reasonable care in selecting an employee if the employer conducted a
"background investigation" that "did not reveal any information
that reasonably demonstrated the unsuitability of the prospective employee for
the particular work to be performed for the employment in general."
To conduct this background investigation and obtain the benefit of the
presumption, the prospective employer must (1) conduct a criminal background
investigation on the prospective employee with the Florida Department of Law
Enforcement; (2) make reasonable efforts to contact references and former
employers of the prospective employee concerning the prospective employee's
suitability for employment; (3) require that the prospective employee complete a
job application, which includes questions concerning whether the prospective
employee has ever been convicted of a crime (including the time, date and
penalty) and whether the prospective employee has ever been a defendant in a
civil action for intentional tort (including the nature of the action and
disposition); (4) obtain, with authorization from the prospective employee, a
check of the driver's license record (if relevant to the work to be performed);
and (5) interview the prospective employee.
The negligent hiring statute specifically provides that the failure to
conduct all or any part of the background investigation does not raise any
presumption that the employer failed to use reasonable care in hiring an
employee. Of course, if the employer fails to conduct the investigation as
prescribed by the statute, it cannot obtain the benefit of the presumption.
With the Tort Reform Act, the Florida Legislature has provided employers with
a statutory affirmative defense to negligent hiring claims. It remains to be
seen, however, how the courts will interpret the new statute. Although the
Florida Legislature has promulgated some protections for employers, caution
should be maintained until the full impact of the statute can be evaluated.
For more information please call Gregory Williamson at 1-888-688-8500.
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