It’s every HR professional’s worst nightmare: An episode of workplace violence occurs on his or her watch and is closely followed by a negligent hiring claim. While such claims are rare, every employer should understand basic risks and due diligence to avoid liability.
Negligent hiring tends to be associated with candidates with criminal records, but the link between the two is often exaggerated, according to Oakland, Calif., attorney Maurice Emsellem, fair-chance hiring director with the National Employment Law Project. Fear of negligent hiring litigation shouldn’t negate the emerging trend of employers giving people with criminal histories a second chance. Current research indicates that these individuals are no more likely to engage in workplace misconduct than anyone else, Emsellem says. That’s why it’s wiser for employers to focus on exercising due diligence with regard to all job candidates, not just those with criminal records.
Negligent Hiring Doctrine
Under the doctrine of negligent hiring, an employer is liable for harm its employees inflict on third parties when the employer knew or should have known of the employee’s potential risk to cause harm, or if the risk would have been discovered by a reasonable investigation.
While federal courts and the courts of nearly every state recognize a cause of action for negligent hiring, they apply different standards for liability—notably, to the degree of foreseeability required—and offer little clarity on how to avoid it.
A dozen states have passed laws recently limiting employer liability for negligent hiring, but even these provisions are not uniform. They generally fall into three categories:
Evidentiary limitation. The use of an employee’s criminal history is limited as evidence unless the nature of the criminal history bears a direct relationship to the facts underlying the claim. For example, a DUI would not be applicable to a case of theft.
Restoration of rights certificate. A judge may issue a person with a criminal record who meets certain criteria a certificate that creates a presumption of due care so long as an employer knew of the certificate at the time of hiring.
Presumption against liability. An employer’s compliance with relevant laws regarding criminal-background investigations creates, in certain circumstances, a presumption against liability for negligent hiring.
These laws may open doors for some candidates with records, but they also perpetuate the stigma associated with a criminal record, Emsellem says. “It’s really not about criminal records; it’s about due diligence.” He prefers as a standard the broader fair-chance hiring laws that remove barriers to employment for people with criminal records.
State law reform—fair-chance hiring laws and limitations on employer liability—is neither sufficiently widespread nor standardized to guarantee a good night’s sleep for most employers. In the absence of a uniform national standard, it is more efficient, effective and sustainable to adopt best practices for due diligence in hiring people with criminal records.
The Lawyers’ Committee for Civil Rights Under Law collaborated with other employee rights organizations and consulted with leaders in the background-screening industry to produce Best Practice Standards: The Proper Use of Criminal Records in Hiring in 2013.
The standards, covering both employers and consumer reporting agencies, are grounded in the Equal Employment Opportunity Commission’s (EEOC’s) 2012 Enforcement Guidance on the Use of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. They are intended to mitigate the risks of negligent hiring claims, as well as to help prevent violations of laws regarding employment discrimination and background checking.
Employers should not ask about criminal records on application forms, the EEOC report states. They should consider only convictions and pending prosecutions, and only those that are relevant to the job in question and recent enough to indicate significant risk. Employers should provide applicants the opportunity to challenge any report, and they should consider evidence of rehabilitation.
Relevant or Not?
The relevance of the crime to the job in question as a factor in deciding whether to hire a candidate with a criminal record appears in the EEOC guidelines, fair-chance and negligent hiring laws, and recommended best practices. Job relevance is also an element in establishing the reasonableness of an employer’s exercise of due diligence in a negligence claim.
The most sophisticated relevance analyses usually occur after things have gone wrong, as part of the settlement process. To establish relevance, an expert may facilitate a multidisciplinary panel including, for example, criminologists with different perspectives; local and federal law enforcement; and employer representatives from the asset protection, security, HR or legal departments.
On the preventive side, employers may devise a targeted screen for particular jobs, says Kathleen Lundquist, CEO of New York City-based APTMetrics. But a rudimentary screening process or tracking system that may not be EEOC-compliant but considers the relevance of the crime to the job could establish an employer’s due diligence for negligent hiring purposes.
Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.
Illustration by Adam Niklewicz.