Negligent hiring occurs when an employer hires an individual who then harms a third party, and the employer is found liable because they failed to exercise reasonable care in the hiring process. Essentially, the employer didn’t do enough to ensure the employee was fit for the job, and this failure to act responsibly led to harm.
This usually means that the employer neglected to run background checks to uncover these red flags in the employee’s history, or they ran the checks but failed to recognize the potential for danger.
When evaluating negligent hiring claims, courts evaluate the quality of an employer’s investigations based on several factors, such as:
- The risks associated with the position
- The extent of the employer’s investigative measures
- The discoverability of the employee’s past conduct or history that would indicate a tendency that would render the employee unsuitable for the position
The message to employers is clear: employers have a legal duty to exercise reasonable care when making hiring decisions. It’s essential to conduct thorough background checks and make wise use of the results when making hiring decisions.
Negligent retention
Negligent retention claims require the same elements as negligent hiring. The difference is the point at which the employer should have known about the employee’s dangerous tendencies or causes for concerns. Essentially, negligent retention claims assert that there was a point in time where the employer personally knew about or should’ve known about these red flags, but ignored them.
Negligent retention claims require the following:
- A pre-existing employment relationship
- Incompetence or criminality of the employee in question
- Actual knowledge by the employer of the incompetence or criminality
- A specific act by the employee that caused injury to the plaintiff
- Proximate causation – in other words, if the employer had not been negligent, the injury would not have happened
Negligent retention claims focus on whether an employer knew or should have known that the employee posed a risk. Courts consider the following when answering that question:
- The employee’s work record
- Prior complaints about the employee
- Job-related inappropriate behavior
- Witness accounts (managers or supervisors) of inappropriate behavior
- Has the employee’s behavior at work made adverse events at all foreseeable? If the answer is yes, it might be negligent retention.
The role of background screening in minimizing risk
Background screening is one of the best ways to minimize your risk of negligent hiring or retention suits.
The types of checks an organization runs depend largely on the nature of its business. Some checks are standard across all industries. Job applicants expect a criminal background check, sex offender check, and Social Security Trace (SST) to be part of the hiring process for most jobs.
Regulated industries like healthcare, insurance and transportation require additional checks to screen for additional risk factors and keep their organizations safe. That includes:
- Motor vehicle reports for delivery or transportation workers ensure the hiring of responsible and safe drivers.
- Professional license checks are used by organizations, such as healthcare companies hiring doctors and nurses, to protect against hiring a fraud.
- Credit reports are run by banks and other financial institutions to protect against theft and embezzlement.
Your specific screening packages will depend on industry regulations as well as the risk profile of the role. Some factors to consider include:
Regulatory mandates. Many positions require specific background checks by law. For example, transportation workers are required by the Department of Transportation to pass a motor vehicle screening while teachers are required to have a clean criminal record.
Common sense and overall risk assessment. A careful examination of the positions within an organization will reveal what background checks make the most sense.
The same holds true for continuous monitoring and/or periodic screening of current employees to avoid negligent retention suits.
Continuous monitoring. Many employers choose to use ongoing driving record and criminal record monitoring as well as random drug tests and other tools to ensure a safe workplace and protect against negligence.
Many background screening providers like Accurate provide continuous monitoring programs that alert employers in near real-time if risky behavior pops up in an employee’s record.
How to determine disqualification based on the results of a background check
Conducting background screens is easy. Determining whether to rescind an offer, or terminate an individual, based on information revealed by a background screening is much more difficult.
Negligent hiring/retention suits hinge upon the discovery of red flags. Some employers may see this as an incentive to adopt blanket policies that exclude all individuals with any criminal history from employment.
Employers may see this as simply erring on the side of caution against potential negligent hiring suits. But they open the door to discrimination lawsuits from the Equal Employment Opportunity Commission. They also may violate state and local Fair Chance laws, which restrict how employers can make employment decisions based on criminal history.
So how can employers protect themselves against negligent hiring and retention suits without violating their candidates’ rights or violating Fair Chance laws?
Individual assessments can help you strike this balance.
When conducting an individual assessment, the employer considers the context of the candidate’s criminal offense before making a final employment decision based on that information, like the amount of time that’s passed and rehabilitation efforts, as well as whether that offense will prevent the candidate from fulfilling the roles and responsibilities of the position being filled. (Learn how to conduct individual assessments here.)
Individual assessments typically consider the following factors:
Time. More recent criminal offenses are more relevant than the old offenses. An applicant with a single 20-year-old crime on their record has demonstrated clean and honest living for two decades. That is the relevant fact, not the ancient crime.
Severity. Some crimes are more serious than others. Violent crimes such as murder or rape could be disqualifiers, but the same is not always true for non-violent crimes or misdemeanors. However, all criminal activity must be considered individually and in context.
Repetition. Repeat offenders may be riskier than one-time criminals.
Restitution. Has the individual demonstrated restitution for their crimes? Can they demonstrate rehabilitation?
Consider the Nature of the Job. Finally, employers should consider how all of the above factors will impact the candidate’s ability to perform the role as designed. For instance, it may be reasonable to disqualify someone for a driving job because of a previous DUI conviction. But that DUI probably wouldn’t disqualify them for a desk job. If the offense has no direct correlation to the position at hand, it may not put you at risk for a negligent hiring suit and typically shouldn’t be disqualifying.
This is intended to encourage employers to make a more thoughtful, nuanced employment decision — one that considers the need for customer and employer safety while also accounting for the candidate’s rehabilitative efforts and potential for success in the role. (Worth nothing: More jurisdictions like New York City and Los Angeles are requiring employers to review candidates to conduct these individual assessments before making an employment decision based on criminal history.)
Accurate’s thorough and reliable employment background screenings can help you protect your organization and improve your hiring practices, all while getting your top talent in the field more quickly. Contact us today to find the best background screening program for your business.
