Negligent Hiring on the Horizon?

Increasingly, I am of the view that Canadian employers can learn much from what is happening in the U.S..  Sure, there are some significant difference between the legal systems in Canada and the US, but reading these US cases makes you pause and think "hey, I can see that happening here". 

A couple of years ago I wrote about negligent hiring.  Unfortunately, the link to the article no longer works (2 years will do that), but, thanks to Geoffrey Gussis at InhouseBlog - News for Inhouse Counsel  and his post Pinching Pennies in a Background Check Might Cost You we have some more recent discussion about "negligent hiring" and the importance of detail and thoroughness in the hiring process.

The article to which Geoffrey refers (Pinching Pennies in a Background Check Might Cost You) states that:

"The U.S. Department of Commerce estimates that 30 percent of all business failures are the result of bad hiring decisions. While a typical background check costs far less than an average day's pay, one serious hiring mistake can sink a small business."

To illustrate their point:

"Companies should have particular concerned about negligent hiring lawsuits. An employer can be held responsible for unlawful or improper acts of an employee, when it fails to conduct a pre-employment background check and the employee has a prior criminal record. For example, 28 year old Christina Appleton was stabbed to death by co-worker, Arvie Carroll, a convicted murderer placed with Iron Horse Vineyards by a temporary agency that did not conduct a background check. The case went to trial and the jury awarded the family $5.5 million. According to industry experts, California employers lose negligent hiring suits 60 percent of the time, and the average verdict award in such cases is $870,000."

Some Canadian pre-hiring checks include:

• Reference
• Criminal background
• Credit

(As always, get advice in your jurisdiction/province on whether these checks are appropriate and permissible, under what circumstances they can be conducted, how and what the cost is). 

I was fascinated by the discussion in the article about Workers' Compensation checks which, the authors say:

"... are commonly requested as part of a background check, particularly in California, where the premiums are high. Under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act, a Workers' Compensation check cannot be conducted until there is an offer and acceptance of employment. In California, the law applies to any private employer with five or more employees. The kinds of information available with this check are: body part injured, date of injury, employer name, and final outcome. While you cannot ask an applicant whether he or she has ever filed a Workers' Compensation claim, you may inquire about whether they are able to bang away at a computer keyboard all day. If they indicate that they do not have a problem typing all day, but you find a claim for carpal tunnel syndrome, you may withdraw the job offer."

Firstly, I have never heard of an Canadian employer conducting such checks (if fact, I question whether (a) there is a means for doing so and (b) whether they are legitimate).  Second, the fact that an employer discovers that a employee has a claim for "carpal tunnel syndrome" does not, in my mind, mean that they can't "bang away at a computer keyboard all day".  What's the claim about?  What does the medical say?  What is the person's current condition?  Is "banging away at a computer all day" a bona fide occupational requirement?  What about the duty to accommodate?  The mere filing (or existence) of a claim does not, in itself, mean the employee can't do the job or that the offer should be withdrawn without risk.