When hiring anyone, you should be familiar with the legal principle of negligent selection. The term negligence means carelessness or a failure to exercise reasonable care. Negligent selection, then, means carelessness or a failure to exercise reasonable care in the selection of a worker. Consider the following examples:
Example. A church allows Bob to serve as a Sunday School teacher in a 3rd grade class despite its knowledge that Bob engaged in inappropriate sexual relations with a child in another church. The senior pastor wants to give Bob a “second chance.” Six months after being hired, a parent alleges that Bob molested her adolescent daughter. The church is later sued by the victim and her mother, who allege that the church is responsible for Bob’s misconduct on the basis of negligent selection.
Example. A youth pastor asks a church member if she would drive several members of the church youth group to an activity. The member agrees to do so. While driving to the activity, the member is involved in an accident while driving at an excessive rate of speed. Some of the children are injured. Parents later learn that the driver had a suspended driver’s license as a result of numerous traffic violations. No one at the church was aware of the member’s driving history, and no one ever attempted to find out. The church is later sued by two of the families, who allege that the church is responsible for the driver’s actions on the basis of negligent selection.
These examples illustrate how a church’s negligence in the selection of a worker can lead to liability. It is important to recognize that churches are not automatically liable for every injury that occurs on their premises or in the course of their activities. Generally, they are responsible only for those injuries that result from their negligence. It is therefore essential for churches to exercise reasonable care in the selection of workers to reduce the risk of liability based on negligent selection. Here are some practical ways that this risk can be managed:
Sexual molesters
Churches must exercise reasonable care in the selection of youth and children’s workers in order to avoid potential liability based on negligent selection. Churches can significantly reduce the risk of such incidents by taking a few simple precautions, including the following:
- Every applicant for youth or children’s work completes a written application form. At a minimum, the application should ask for the applicant’s name and address, the names of other youth-serving organizations in which the applicant has worked as an employee or volunteer, a full explanation of any prior criminal convictions, and the names of two or more references.
- If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver’s license). Child molesters often use pseudonyms.
- Obtain a reference from each organization in which the applicant previously worked with minors (other churches, Boy Scouts, coaching, private schools, etc.). If you do not receive back the written reference forms, then contact the references by telephone and prepare a written memorandum noting the questions asked and the reference’s responses.
- Conduct a criminal records check. There are many kinds available (county, state, and national). For persons who have lived and worked in your state for many years, a state check may be appropriate. For those who have lived in more than one state over the past few years, a national check (or multiple state checks) may be indicated. Many states have online “sex offender registries” that can be checked by anyone at little or no cost. These should always be checked. You may need an attorney to assist you in evaluating the relevance of certain crimes that are disclosed during a records check.
- Applicants should be interviewed. This will provide the church with an opportunity to inquire into each applicant’s background and make a determination as to each person’s suitability for the position under consideration.
- Church leaders often “err on the side of mercy” when making employment decisions. This attitude can contribute to a negligent selection claim—if a church gives an applicant a “second chance” despite knowledge of prior sexual misconduct, and the conduct is repeated. What the church views as mercy may be viewed as negligence by a jury.
- Drivers
- Negligent selection claims are not limited to cases involving sexual misconduct. They can arise anytime that a church’s failure to exercise reasonable care in the selection of an employee or volunteer leads to a foreseeable injury. A common example is the selection of persons as drivers to transport children or youth. For example, if a church uses a driver with a suspended drivers license, or with a history of traffic offenses, then it may be responsible on the basis of negligent selection for injuries caused by the driver’s negligence. To reduce the risk of liability in this context, churches should refrain from using any driver without taking the following steps:
- Have each prospective driver complete an application form that asks for the person’s drivers license number, type of drivers license and expiration date, a description of any driving restrictions, and a history of traffic accidents and moving violations.
- Ask the church’s liability insurance carrier to check on the individual’s driving record. Often, insurance companies will perform this task if requested, at no charge. The insurance company should be requested to update its research on all drivers of church vehicles periodically, to screen out persons with a recent history of unsafe driving.
- Discontinue using any driver if reports are received that he or she is operating a church vehicle in a negligent manner. Fully investigate such reports, and do not use the individual again unless the investigation clearly demonstrates that the complaints were without merit.
- If the prospective driver is a new member, then ask for the names and addresses of other churches in which he or she has worked as a driver. Contact those other churches and ask if they are aware of facts that would indicate that the individual should not be used as a driver. Make a written record of such contacts.
- Periodically invite a local law enforcement officer to speak to all drivers concerning safety issues.
- Require all drivers to immediately inform the church of any traffic convictions.
