Are Concerns About Negligent Hiring Overblown?

Despite widespread fears, the majority of employers face little risk of being held liable for negligent hiring.

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Aug 3, 2023

When it comes to hiring people with criminal records, there’s often a “but.” As in, “We’d like to hire this person, but…”

A main “but” for numerous employers is a fear of being charged with negligent hiring, which is when a company hires someone who causes harm to others and whereby an employer should have known of the person’s potential to cause harm but failed to take action to reduce risk.

Translation: The organization should not have hired an individual who it should’ve seen as a threat.

That threat, however, may be overblown. A new report by Legal Action Center, titled “Second Chance Employment: Addressing Concerns About Negligent Hiring Liability,” points out that while concern among employers is legitimate, the risk is relatively small. What’s more, the paper states that while “the widespread success of establishing fair chance hiring policies like ‘Ban- the-Box’ work to reduce rejection of some applicants with arrest and conviction records based on stereotypes, it does not reduce employer reluctance to hire based on fear of liability.

The reality is that the number of negligent hiring cases where an employer is found guilty is relatively small — and even then, 97% of those cases are highly concentrated in jobs that entail one of the following:

  1. Contact with vulnerable populations (such as children, people with disabilities, and the elderly)
  2. Operation of a motor vehicle
  3. Access to financial assets
  4. Access to homes
  5. Use of force (police/security guards)
  6. Firearms
  7. Alcohol

In other jobs, research shows that negligent hiring liability is “virtually nonexistent.” Indeed, in almost 50 years, only 435 court cases found employers guilty of negligent hiring. This, however, doesn’t include cases that were settled. Once you consider the latter, it turns out that there are over 2,200 cases total.

To mitigate risk of being charged with negligent hiring, the research report suggests first documenting and considering all job responsibilities to gauge whether they include any of the seven main risk factors cited above. Afterward, companies are suggested to conduct assessments that account for the nature and gravity of the offense, how much time has passed since conviction, the nature of the job sought, and evidence of rehabilitation.

As the study states, “Hiring someone with a conviction record for one of these sensitive jobs does not necessarily mean that the employer will be held liable if the person later harms someone. It means that there is some potential risk of liability.”

Additionally, to be liable for negligent hiring, there must be a connection between the offense that was committed and the job. For instance, the study explains that while a past DWI has a nexus with a job operating a motor vehicle, a prior conviction for theft would not. Ultimately, it’s important not to let a bloated fear of being charged with negligent hiring get in the way of continuing to provide opportunities to people with past criminal records.

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