There is authority in the common law--the body of law derived from usage, custom, and tradition--supporting the argument that the concept of negligent hiring can be applied even when the wrongdoer is an unpaid staff person. "A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless.. .in the employment of improper persons or instrumentalities in work involving risk of harm to others."
RESTATEMENT (SECOND) OF AGENCY, Section 213 (1958) jilt is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others."
RESTATEMENT (SECOND) OF TORTS, Section 308 (1965). As discussed previously, key considerations are:
- Foreseeability. Did the nonprofit know or should it have known that the staff member posed an unreasonable risk of harm?
- Control. Did the nonprofit have control over the activity in which the "actor" was engaged?
Risk Management Strategies for Legal Screening
- Always base screening processes on the potential risk posed by a position. Begin your screening process by considering the potential dangers inherent in the position. For example, a position that will have one-on-one contact with vulnerable service recipients or the general public poses greater risk to these populations than a clerical position with light typing duties and no public
- When a position involves unsupervised contact with vulnerable service recipients, use a more rigorous screening process. The determination of whether a screening process will be considered reasonable will take into account the level of risk to service participants.
- Before screening for a particular position, identify the characteristics that will act as automatic dis qualifiers for the position. For example, determine that one or more moving violations during the past five years will disqualify an applicant for the position of van driver.
- Whenever a basic screening process raises red flags about an applicant, you should investigate the issue to determine whether it disqualifies the applicant.
- Do not disqualify applicants based on their beliefs. Conduct, not ideas, is an appropriate basis for exclusion.
- If appropriate, when a disqualifying characteristic is detected in an applicant for a volunteer position, consider the applicant for another position.
- Establish written screening guidelines and use written tools to substantiate your efforts, such as position descriptions, interview guides, hiring checklists, reference check worksheets, and other items as appropriate.
- Determine whether a license is required for each position, and confirm that every applicant has the required license before proceeding with additional steps in the screening process.
- Evaluate the sufficiency of your screening processes using the reasonableness standard. Is the process used to screen applicants for volunteer positions reasonable under the circumstances? Is the process used to screen applicants for paid positions reasonable under the circumstances?