A Note on Negligent Hiring for Virginia Businesses

One of the most maddening things that can happen to a business owner is to be sued for breaking a law that he or she did not even know existed, especially when the lawsuit could have been prevented had they been aware of the law. “Negligent hiring” is one such law.

In most states – including Virginia – companies can be sued under a legal theory of negligent hiring. Does this law mean you can be sued for hiring a terribly odd employee? Probably not. But it does mean that your company can be held liable if one of your employees injures someone and – here’s the important part – the court finds that it was foreseeable that the employee would do so. An obvious example would be a daycare facility hiring a pedophile. If that employee subsequently molests a child, a court could find that the injury was foreseeable and find the facility liable for negligent hiring.

The question of foreseeability is, or course, a murky one. Just last month a Virginia Circuit Court found that a jury could find that an auto-accident caused by a truck driver was foreseeable based on the poor driving record of the employee driver.[1] Logically, it makes sense; hiring a poor driver could lead to an accident. But in a separate Virginia case from 2002, the Supreme Court of Virginia found that the auto-accident caused by an intoxicated staffing agency temp was not foreseeable despite evidence that the employee had previously been convicted of two DUIs and had been declared a habitual offender by the DMV.[2]

Further complicating the matter is the issue of background checks. Virginia courts have affirmatively stated that mere proof of a company’s failure to conduct a background investigation is not enough to trigger negligent hiring liability.[3] In other words, in most instances there does not appear to be a requirement in Virginia to conduct criminal background checks.

But, Virginia law may require businesses to do some type of reasonable investigation.[4] In fact, as recently as 2005 the Fourth Circuit Court of Appeals relied heavily on the fact that an employer failed to conduct any criminal background check on a janitor (who subsequently assaulted a student) when it held that a jury could find the employer liable for negligent hiring.[5]

Good hiring practices are important both because they help businesses select the best employees but also because they help businesses protect themselves from potential lawsuits down the road. If you are a business owner concerned about your liability for negligent hiring, it is a smart idea to have an attorney review your hiring practices.  While a lawyer probably cannot prevent you from hiring someone like this, he or she can help you minimize your legal risks.

 

NOTE: This post is for informational purposes only. It is not legal advice. If you need legal advice, please contact a lawyer.  (If you are still not convinced, please read our disclaimer.)



[1] Kohr v. Hostetter & H&H Auto Service Cent Inc., No. CL 10-1009 (Aug. 2012 Rockingham County Cir. Ct.)

[2] Interim Personnel of Central Virginia, Inc. v. Messer, 263 Va. 435 (2002)

[3] Majorana v. Crown Central Petroleum Corp., 260 Va. 521, 531(2000)

[4] Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999)

[5] Blair v. Defender Services, Inc., 386 F.3d 623 (4th Cir. 2004)

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