What’s the Legal Risk of Hiring An Employee Who Hurts Someone?

Aug 15 2017

David McPherson

Do you ever worry about what would happen to the church if one of its employees hurt someone, whether intentionally or accidentally?  If you haven’t, you should.  There is a legal cause of action called negligent hiring and it applies to churches just like it applies to other employers. 

Let’s look at a quick example of how this could come up.  The church youth minister has an accident while driving six students to an event in the church van.  Several of the students are seriously injured and you find out during the investigation that, while working for his previous employer, the youth minister had been found guilty of reckless operation of the church van.  In that case, no one had been hurt.  You call your insurance company to put them on notice of the potential claim and they begin asking you some uncomfortable questions.  This situation can be avoided by taking some simple steps in the hiring process.

For someone to bring a claim of negligent hiring against the church, they must show certain things.  The exact details vary by state, but generally, they must prove:

  1. The church did not use reasonable care in hiring the employee;
  2. The employee had unsafe tendencies, an unsafe driving record, that the church would have found if it had used reasonable care in the hiring process; and
  3. The church placed the employee in a position where others could be injured.

Do you see how these elements appear in our illustration?  Someone could argue that number 2 is there, the youth minister’s past citation for reckless operation could show that he has unsafe tendencies.  They could also argue that number 3 is met because the church allowed the youth minister to drive students in the church van, which placed him in a position where he could hurt others.  What about the first point, whether the church exercised reasonable care in hiring the youth minister?  This could be the bright spot in your conversation with your insurance carrier if you have good hiring practices.  If the youth minister would be expected to drive the church van as part of his job, a good hiring process might have included a reference check with past employers, a criminal background check, and a motor vehicle record check.  If the church did all those things and nothing indicated that the youth minister had a history of unsafe driving, the church may still be sued, but the chances of winning go way up.  If on the other hand the church did none of those things and, if done, they would have alerted the church to the potential danger to the students, the church could be at risk.

 If the youth minister would be expected to drive the church van as part of his job, a good hiring process might have included a reference check with past employers, a criminal background check, and a motor vehicle record check.  If the church did all those things and nothing indicated that the youth minister had a history of unsafe driving, the church may still be sued, but the chances of winning go way up.  If on the other hand, the church did none of those things and, if done, they would have alerted the church to the potential danger to the students, the church could be at risk.

As you can see, the best defense to a claim of negligent hiring is to use reasonable care in hiring employees.  What constitutes reasonable care depends on the nature of the position.  But, the church should always check references and verify an applicant’s education and past employment.  Depending on the position, the church may run a criminal background check.  Be sure to check your state and local laws before running a criminal background check.  If the employee will be driving as part of the job, whether the church vehicle or a personal vehicle, the church should also check the applicant’s driving record.

For more information on negligent hiring and a related cause of action called negligent retention, please download the white paper and check the links on the information page.  If you have other questions, you can call or email me at McPherson Legal.

Online Resources

Here are other resources on the subject.  The Center for Church Leadership does not endorse these organizations. But, the information may be helpful to you in exploring this topic and developing the hiring due diligence process for your church.

 

If you would like David to review your hiring process or advise on issues like conducting criminal background checks on applicants, you can contact him at:

David McPherson
McPherson Legal, LLC
David@McPherson.Legal
(513)256-0247

**This white paper is not intended as legal advice and you should not make any legal decisions based on the information in the blog post or this white paper.**

 

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