Negligent Hiring Risk Less Than Employers Believe

​Second-chance hiring advocates argue that the fear of being accused of negligent hiring—one of the main reasons given for not hiring people with criminal histories—is overblown.

A recent report by the Legal Action Center and National Workrights Institute shows that while negligent hiring liability does exist, it is far less common than people might think. And when specific roles dealing with vulnerable populations or access to homes or financial assets are removed, there is virtually no risk, the study found.

The groups examined every reported negligent hiring decision from 1974 through 2022 and found that approximately 435 trial court decisions held employers liable for negligent hiring during that time—an average of nine cases per year.

"Almost all cases in which employers have been found liable for negligent hiring occur in a small number of jobs involving specific risks and the employer's vetting process of candidates very often was not comprehensive," said Lewis Maltby, president of National Workrights Institute in Princeton, N.J. "Employers who conduct record checks and thorough background screens that also include employment history, skills and job-relevant competencies when making hiring decisions are rarely held liable."

For most white-collar and blue-collar jobs, there is very little risk of liability from negligent hiring, said Roberta Meyers Douglas, vice president of state strategy and re-entry and director of the National H.I.R.E. Network at the Legal Action Center in New York City.

In 97 percent of cases in which an employer was found guilty of negligent hiring, the roles entailed:

• Contact with vulnerable populations such as children, disabled people and older adults.
• Operation of a motor vehicle.
• Access to financial assets or customers' homes.
• Use of force, such as police officers or security guards.
• Use of firearms.
• Access to alcohol, such as being a bartender.

When including negligent hiring cases that were settled before reaching a court decision, that number increases to around 2,260 cases total. It's also important to note that employers can be found liable for negligent hiring for reasons other than prior bad conduct by the employee—typically when the worker is proven to be incompetent in the role.

Negligent Hiring Risk

Negligent hiring is a civil cause of action in which an employer is found liable because they hired someone they knew, or should have known, was likely to harm others in the position for which they were hired.

Employment attorneys interviewed by SHRM Online supported the assertion that negligent hiring lawsuits are rare.

"Anecdotally, there's only one negligent hiring case I've dealt with in my over 20-year career," said Eric Meyer, a partner in the Philadelphia office of FisherBroyles. "The likelihood of a business facing a jury trial on a negligent hiring claim is very low, although there are times that I've seen negligent hiring tacked onto broader discrimination or sexual harassment lawsuits against employers."

Rod Fliegel has been practicing law since 1993. He is currently an attorney in the San Francisco office of Littler Mendelson and co-chair of the firm's background screening practice.

"Overall, these types of claims are pretty infrequent and are more likely to occur in the categories enumerated in the report, like working with vulnerable populations or workers going into customers' homes," he said.

He added that he's seeing an uptick in negligent hiring concerns because of the growth of gig work, where there is more contact with contractors and customers.

The main defense against a negligent hiring claim is exercising due diligence and reasonable care in the hiring process, including conducting a background check. Interestingly, it was the threat of negligent hiring lawsuits that many believe led to the increased practice of criminal background screening among U.S. employers starting in the 1990s.

"When an employer is held liable for negligent hiring, the reason is often because they did not conduct any background screening or review before they hired the employee involved," Maltby said.

"That sounds logical," Meyer said. "Negligence comes down to a reasonableness standard. Did the employer act reasonably? Doing a background check and conducting an individual assessment could cut in the employer's favor. Will liability be 100 percent absolved? I can't say that because each case is unique. But is a negligent hiring claim less likely to be successful? I think so."

Another defense in negligent hiring claims is that the harm was unconnected to an employer's negligence—essentially, the harm was unpredictable.

"Courts require that there be a connection between the nature of the employee's prior behavior and the nature of the subsequent harm," Maltby said. "Without such a connection, the employer is usually not liable."

For example, a driving-while-intoxicated conviction has a nexus with a job operating a motor vehicle, whereas a prior conviction for theft would not. A conviction for a violent crime has a nexus with jobs involving access to a vulnerable population, but a theft conviction generally would not.

"Employers interested in fair chance hiring need to fold any risks into their overall risk calculus along with other competing risk considerations they have to account for in running their business," Fliegel said. "The extent of the risk can vary for each employer depending on many factors. It's a matter of perspective, not a right or wrong decision."

Employer Recommendations

There are actions employers can take to protect themselves from legal liability while practicing second-chance hiring.

HR can start by documenting job responsibilities for every position to determine which ones are inherently risky. "The critical question is whether the job entails any job duty or activity in one of the risk categories," Meyers Douglas said. "Negligent hiring is not a significant risk for employers in the vast majority of jobs. The few jobs where it is a risk are well defined and the risk is avoidable."

Next, obtain accurate records through a background check conducted by a trusted provider. "Where jobs with heightened risk are concerned, courts expect employers to evaluate applicants' backgrounds before hiring them," Meyers Douglas said.

Individualized assessments should be performed for candidates with criminal histories. Guidance from the Equal Employment Opportunity Commission directs employers to make individualized assessments about the appropriateness of hiring a particular applicant, including considering the nature and gravity of the past offense, the time that has passed since the offense, the nature of the job, and the evidence of rehabilitation. 

Employers should also take advantage of resources from organizations willing to help.  

"One of the most challenging situations for employers is evaluating whether someone with a serious conviction record is rehabilitated," Meyers Douglas said. "Many communities have workforce intermediary organizations that help formerly incarcerated people prepare for and secure appropriate employment and be successful on the job. They may offer life skills and case management services and be willing to support employers that hire these workers."

The Legal Action Center maintains a list of some of these workforce intermediary organizations.

"We know that employers want to hire the most qualified candidates, keep their employees and customers safe, prevent unlawful behavior in their business, and preserve the company's reputation and brand image," Maltby said. "Although negligent hiring is a genuine concern, employers can offer fair chance employment opportunities without serious or increased risk of liability."

Several states have enacted laws to attempt to protect employers from negligent hiring liability in situations where they have made a good faith decision to give someone with a criminal record a second chance.

"While the additional protection provided by the statutes is modest, they show that the law in this area is moving in the direction of protecting responsible employers," Meyers Douglas said.