• Contact prior employers to verify dates of employment and positions held. It is difficult today but, for your most sensitive hires, make an appeal with a boss-to-boss call and try to learn about reliability, honesty, temper and applicant's tendency to display anger/threats.
• Document all of your investigative and screening efforts even if they fail.
• Employment applications should plainly advise that omissions, misrepresentations or falsification of information will result in the rejection of the applicant or termination of employment.
• Obtain permission from all applicants to perform background checks, including criminal record checks (warning: consult your attorney for specific legal advice on pre-employment background checks done by third parties).
Negligent Training: Courts in certain circumstances have also recognized a cause of action for an employer's negligent training of its employees that result in injury to a third person. Proper training and orientation has already proven to make great business sense. Make the position of trainer a top-of-the-ladder job and this should be less of a concern.
Negligent Supervision And Retention: Some courts have also recognized an employer's liability if they have not taken reasonable care in supervising an employee who is threatening violent conduct. There is potential liability if the injured party can establish that the company failed to exercise ordinary care in that employee's supervision.
Please think long and hard when you make someone a supervisor for the first time. Pick a mature, diligent person and get them immediately to a comprehensive training course. In the same way, a company may become exposed to liability for negligent retention when the employer is aware, or should be aware, that an employee is unfit, but fails to take action (e.g. investigating an incident, discharging a worker, reassigning the employee, etc.). All the more reason to consider adopting probationary periods of employment and ending your relationship if there's trouble at the 60 or 90 day point. If you're not sure they fit at this point, cut your losses.
Negligent Recommendation Or Misrepresentation: This one seems to get most of the press — perhaps because we've all been in this desperate spot. Here, companies become liable when they provide a false positive reference for a problem employee over the phone. Great ethical men and women have had true moments of sweet bliss after they've successfully convinced some other poor soul to take Worker X, the source of all pain and misery in the world, off their hands.
Ordinarily, you hang up that phone and the problem literally goes away and is passed on to the next employer. We must have all dodged a hail of bullets over the years because once in a great while Worker X, the train wreck with a social security number, moves on to another company, does something horrible and someone gets hurt. The joke is over and, suddenly, your over-enthusiastic recommendation is seen as a selfish inconsiderate act and once again Worker X haunts your every waking moment. Companies and their personnel do not have a duty to provide information on a past employee but when you do provide details, you must tell the truth and not suppress or misrepresent facts.
It's easy to go along with the pack and set a new policy declaring that no information, beyond dates of employment and job titles, will be volunteered, but eventually someone will be hurt by this fear-based restriction. If you are again faced with a reference request on another Problem Worker X, consider everyone's interests. Be honest and do what feels right.