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National Association of Counties * Washington, D.C.         Vol. 32, No. 18 * October 9, 2000

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He Should Never Have Been
Hired in the First Place

This is the first of two articles concerning what managers need to do to avoid claims of negligence in hiring, supervision and training.

In the highest liability HR issues – workplace violence, sexual harassment, race and gender discrimination, and constructive discharge – the corridors of the county administration building or city hall often resound with statements or questions such as, “He should never have been hired in the first place,” or “How did he ever get hired?”

Those quotes are not “politically incorrect” in terms of gender, but rather reflect the fact that typical perpetrators, especially of violence and harassment, are male. Often the victims are women, although victims and perpetrators come in all genders, ethnic groups and backgrounds.

Public agencies must take steps to be prepared to answer such questions and statements effectively and legally to reduce any future liability. Of course, we all recognize that “playing defense” in a world of plaintiffs’ attorneys is an essential part of every administrator’s thought process. However, there is another reason to adopt a due diligence mind set in certain key HR issues besides avoiding legal liability. That reason involves professional ethics and obligations to keep a safe and equitable work place.

Managers are wrong if they think they can introduce popular and important concepts at work such as accountability, achievement or measurable objectives, pay for performance, a focus on performance outcome, etc., and expect long-term success in a work force if the reality or the strong perception is that managers don’t care about equity, and don’t invest resources in training and development, effective complaint intervention, or other fundamental HR issues.

In fact, no matter how vigorously agendas for organizational changes are pursued, they will fail without a recognition of the need for “due diligence.”

Negligent hiring simply means that the agency failed in basic obligations to make sure that candidate representations in the selection process were in fact accurate.

It may also be a failure of the agency to gather basic information to assess candidate’s job-related knowledge, skills and abilities in the first place. Due diligence, on the other hand, occurs when the agency meets its obligations to “trust but verify” and to take the steps that reasonable professionals in the public sector should be expected to take in making a major decision such as hiring.

It is in the public sector, for example, that we give employees badges symbolizing government authority and sanctions to intervene in critical ways that may carry high liability.

For example, law enforcement officers may legally take a life under certain conditions. Government employees have responsibilities to care for frail and infirm adults, children, victims of crime, and the homeless or mentally ill. If an applicant for school bus driver failed to disclose multiple DUI convictions and the agency did not check driving history and criminal history, the risks are massive and the consequences of this due diligence failure can be devastating.

Hiring employees to work with children without obtaining references and doing background checks that include criminal history is an open invitation to thousands of hours in court. The same is true of law enforcement, corrections or probation personnel who may have criminal histories.

The risks of these liabilities are so obvious, it’s amazing that many agencies minimize the importance of background checks, don’t verify reputed college degrees or licenses and simply ignore the potential for trouble.

The result of such ignoring – or ignorance – will hurt the agency and the career of the manager or director responsible for the hire. However, this kind of trouble and liability can be anticipated and managed if the agency provides the HR resources needed to do the job effectively.

What is “the job”? HR’s job in this area is to be a close partner with the hiring authority and to take steps to ensure that someone, whether an HR staff member or the appointing authority, is following basic applicant background check procedures once a tentative hiring decision is made (See “Applicant Background Checks” at the HR Doctor’s web site). It means that during the selection procedure, information is gathered or elicited by asking the right questions on a job application form and requiring verification of base documents such as a military history “DD-214” form, degrees or transcripts, or other certification. It also means getting verifiable information in the interview. Use open-ended questions such as, “Describe a time when you and your supervisor had major disagreements at work, what were those disagreements and how were they resolved?” “Have you ever been terminated, suspended, demoted or reprimanded at work?” The candidate’s answers can open doors to additional information that can materially affect a hiring decision.

Another part of HR’s role is to make sure that the candidate has given permission for reference checks and that the procedures are in place for criminal history and driving history checks.

In short, a partnership is required between HR and the hiring authority to be diligent in preventing liability. It is not that the appointing authority can get away with saying “that’s HR’s job, not mine.” It is rather that HR enables the agency managers to control this area of liability.

Another key to reducing negligent hiring is documentation. It helps in a later court case or administrative hearing when a manager can testify with confidence and competence because he or she has documented records of what occurred and how it was job-related.

The agency and its managers and supervisors bear the burden of showing that their actions served a proper business purpose and were applied consistently. Ignoring a problem and not providing the resources to do the job will result in failure to meet those burdens.

On the other hand, if agencies make strong selection practices – including background checks – a key part of their way of doing business, the managers, coworkers and the public will much better served.

All the best!

(Rosenberg is the Human Resources director for Broward County, Fla.)


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