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Labor, Employment and Benefits
Newsletter - January 2000
 
In this Issue...
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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