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 Hiring is a job in
itself
By Kent Hanszen
HANSZEN • LAPORTE LAW
FIRM
In this business, companies hire employees every day for jobs involving a wide range of activities. This hiring process should be approached in a competent and diligent manner.
In Texas, an employer may be held liable for the negligent hiring, training or supervision of its employees. Generally, a company has a legal duty to make an inquiry into the competence and qualifications of a prospective employee. An employer cannot just “go through the motions” to avoid liability; it must make a reasonably diligent effort at qualifying its employees. Some examples of cases in which an employer has been found negligent for its hiring, training or supervision practices include a trucking company hiring a driver with a poor driving record, a construction company failing to adequately train an inexperienced employee to operate heavy equipment, or a security company hiring an employee with a history of violent confrontations. The application of this cause of action, in some situations, may even extend to the hiring of independent contractors.
Texas courts also have held that it is negligent to hire an unlicensed person to do work that requires a license. Certainly, this is of import to the private security industry. If a company is hiring an individual to do a job that requires a license, but neglects to verify the license of its applicants, then that company exposes itself to civil, criminal and administrative penalties.
The Private Security Act prohibits a security company from hiring a person with a criminal conviction or a pending criminal case; therefore, diligence requires a background check of all of the company’s employees. In addition, the manager of a licensed security company must undergo a criminal history check by submitting classifiable fingerprints to the Private Security Bureau. The manager’s fingerprints are then sent to the Crime Records Bureau located on DPS premises and to the Federal Bureau of Investigation, where they are classified and the applicant’s criminal history is searched.
The Texas Administrative Code specifically requires a security company to exercise due diligence in ensuring that an applicant’s qualifications meet the provisions of the Act, prior to duty assignment. A security company also is required to maintain records to document the pre-employment check. An employer’s failure to maintain records documenting the pre-employment check is considered conclusive proof that the employer failed to exercise due diligence.
In summary, to reduce the chances of being held liable for negligent hiring, a security company should verify its applicant’s licenses, obtain a criminal background history, and may want to consider establishing training and supervisory programs for its employees. A company should also implement a document retention policy to maintain adequate proof of pre-employment checks and the training provided to its employees.
It should be noted that if there is an incident that could give rise to a lawsuit against your company, the complaining party has two years following the incident to bring that claim. Also, it is important to remember that there are few obstacles to filing a lawsuit, so maintaining proof of a company’s diligence in its hiring practices is important to defending against any claim. It is noted that for some industries, there is a statutory presumption of no negligence when a company obtains the required criminal history, and the criminal history meets the statutory requirements. This may be an area where the security industry’s legislative efforts would be well served.
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