Study Finds Risks of Negligient Hiring Liability Is Lower Than Many Believe

A recent study by the Legal Action Center sheds new light on the actual risks associated with negligent hiring liability when hiring individuals with conviction records. Contrary to the common belief that hiring someone with a criminal history presents significant legal risks, the study shows that negligent hiring liability is far less common than many employers assume, and is most commonly associated with specific types of roles. For employers, this report highlights the importance of thoughtful hiring practices and individualized assessments rather than blanket policies against candidates with criminal histories.

Negligent Hiring Liability and Specific Job Risks

Negligent hiring liability cases typically arise when an employee’s actions cause harm, and the employer is found to have failed in exercising reasonable care during hiring. This liability risk, however, is not universal across all positions. The study reveals that negligent hiring lawsuits tend to focus on certain types of roles with specific risk factors. For instance, jobs that may carry heightened risks include:

• Positions with Contact with Vulnerable Populations: Roles that involve working with children, the elderly, or other vulnerable groups are often more susceptible to scrutiny in negligent hiring cases, as these populations may be more vulnerable to harm.
• Positions Requiring the Operation of Motor Vehicles: Drivers or individuals in similar roles are frequently subjected to more detailed background checks because of the potential for liability in case of accidents.
• Positions Involving Access to Financial Assets: Employees who manage or have access to significant financial resources may pose a higher risk if they have a record related to theft or fraud, making employers cautious about negligent hiring claims.
• Positions with Access to Private Homes: Jobs such as home health aides, cleaning staff, or repair technicians often require employees to enter people’s homes. This setting elevates the duty of care employers must exercise, particularly when hiring someone with a criminal background.
• Positions Involving the Use of Force or Firearms: Security personnel or jobs where physical force or firearms may be used naturally carry heightened risks. Employers must be cautious about liability by closely examining an applicant’s history with violence or firearms.
• Positions Involving Alcohol: Roles in industries such as hospitality, where employees may be working around or handling alcohol, can also be subject to negligent hiring concerns, especially if the employee has a history of alcohol-related offenses.

The study’s findings indicate that for jobs outside of these categories, the risk of negligent hiring liability due to a past criminal record is typically low. This insight can significantly impact hiring practices, as it suggests that not all positions require the same level of background screening, especially for those that don’t involve these defined risks.

Key Takeaways for Employers: Avoid Blanket Exclusions

One of the report’s core recommendations is that employers should avoid automatically disqualifying job applicants based solely on a criminal record. Not only can blanket bans disproportionately affect people with conviction records, but they also overlook potential candidates who could excel in roles with minimal risk. To help assess whether exclusion is appropriate, the Equal Employment Opportunity Commission (EEOC) has issued guidance suggesting that employers should consider three main factors when evaluating candidates with a criminal history:

1. The Nature of the Crime: What was the offense? Some offenses, particularly non-violent and minor ones, may not indicate any relevant risk in most workplace settings.
2. The Nature of the Job: Does the job involve any of the heightened risk factors, such as contact with vulnerable populations or access to private homes? This helps employers determine if a candidate’s history may reasonably impact their suitability for a specific role.
3. The Time Passed Since the Offense: How long ago did the conviction occur? Older convictions, especially when followed by a clear track record, often indicate rehabilitation and may be less relevant to current hiring decisions.

The Value of an Individualized Assessment

To further reduce potential liability and avoid unfair hiring practices, the EEOC also advises employers to conduct an individualized assessment before making a final decision. This assessment involves discussing the candidate’s background with them directly and gathering any additional information that may clarify the situation. For instance, an applicant may provide evidence of rehabilitation, certifications, or professional references that can illustrate their readiness and reliability for the position.

Conclusion

The Legal Action Center study encourages employers to reevaluate strict no-hire policies for individuals with criminal records. While there are specific roles where certain backgrounds may present higher risks, employers can protect themselves by focusing on individualized, job-specific assessments rather than default exclusions. By carefully evaluating the nature of the job, the relevance of the offense, and the passage of time since the conviction, employers can make informed hiring decisions that both reduce liability and foster a fair, inclusive hiring process.

 

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Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.