Every employer knows hiring an employee can cause them a liability. It is part of the responsibility of hiring an employee in the first place. Every personal injury lawyer in West Palm Beach is well aware of these laws as well. These are not employees they are personal injury cases. Before you make a hire you should be aware of the Florida laws which were created to protect your business against trial Lawyers who will work hard and creatively to attach liability to the deep pocket employee.
Not many people disagree that the employer has the obligation of completing a background check before asking a prospective employee to take on a job. Every job demands certain qualifications, capacities and many times demand a behavioral history that does not include crimes, sexual deviance, or aggressiveness.
Every job has certain requirements and duties. When you, the employer, make a hire you need to make sure that the employee has the ability to do the job right. That means, they need to be properly trained, educated and have the background and behavioral disposition to fulfill the requirements of the job. Whenever you ask the employee to take any action you’re taking on the responsibilities for everything that the employee does following your instruction. If someone gets hurt because of the employee’s actions, you, the employer, are going to be on the hook based on the common law master/servant/vicarious liability laws that have been around for hundreds of years.
A harder question arises when the employee takes an action that is outside the scope of what the employer asked them to do. This is especially true when that action is done intentionally by the employee and is clearly outside the scope of employment. When that happens you don’t want to be on the hook for liability because usually those actions (many times they are crimes) are pretty bad stuff!
The damages you, as the employer, will suffer, are compounded when you have failed to make a proper investigation into the background of your employees and you hire someone who clearly not right for that particular job. For example, you wouldn’t want to hire a person who was previously convicted for sexual assault on a minor to be a daycare worker. Believe it or not that still happens!
Florida wanted to make sure that employers acted responsibly when hiring their employees. So they created Florida Statute 768.096. This statute creates a step-by-step guide for employers to behave responsibly and if they follow those statutory steps they will limit their responsibility.
If the employer can show they followed the rules set out in Florida Statute 768.096 then the judge will instruct the jury there is a presumption that the employer was not negligent. Keep in mind, this only works when the claim starts because of an intentional tort by the employee, and the employer is being sued for negligent hiring.
Here are the steps an employer must follow to limit their liability and avoid being sued for negligent hiring.
1 – One of the main requirements is getting a criminal background check on the employee.
2 – Another requirement is making a reasonable inquiry on all of the references and prior employers that the employee put down on their application or resume.
3 – The employer must create a job application where the employee needs to disclose any prior criminal activity where they were found guilty, any past civil case involving an intentional act. In other words, the employee must fill out the employment application whether they have ever had a prior guilty conviction or whether they have been sued for anything other than negligence claims (like car accident cases).
4 – If the employee’s job includes driving then the employee must also disclose their driving record, and must give the employer a release to obtain their entire driving history from the Florida Department of Motor Vehicles.
By following these steps an employer can limit their liability. It may also allow them to avoid hiring the wrong person in the first place! As an employer, I know hiring the right people is the most important thing that we do to help our business. By following Florida’s laws regarding proper hiring you will make your entire company better.