What Are Negligent Hiring Claims?
Definition & Examples of Negligent Hiring Claims
Negligent hiring claims are made when an injured party believes an employer should have known about an employee's criminal or dangerous background. An employer can be held liable if its employees inflict harm on a third party when the employer should have discovered that risk through a reasonable background check.
Find out more about negligent hiring claims and what steps employers can take to prevent them.
What Are Negligent Hiring Claims?
A negligent hiring claim argues that an employer should have known that one of its employees posed a danger to other employees or customers. It's a type of personal injury claim and it assumes an employer has a legal responsibility to hire competent employees and fully vet its workers.
If a hiring decision made by an employer results in an employee who injures or harms a customer, coworker, or any other individual who comes into contact with the employee through their work, the employer could be charged with negligent hiring.
The exact rules regarding negligent hiring claims vary by state. Almost all regard negligent hiring as a cause for action, but they differ on standards for liability.
How Negligent Hiring Claims Work
In negligent hiring claims, the filer attempts to prove that harmful behavior on the part of the employee was to be expected based on the employee's past behavior.
The filer would attempt to show that:
- The person injuring or harming another person is employed by the firm
- The employee was guilty of causing harm, doing damage to, or injuring the complaining party
- The employer knew or should have known of the propensity of the employee to harm
- The employer was negligent in hiring the employee by not exercising appropriate background checking activities that might have revealed the employee’s propensity for harming coworkers or customers
For example, if an employee is assaulted by a coworker, they may have a negligent hiring claim if the coworker is shown to have felony offenses on their record which would have been uncovered with a criminal background check. Similarly, if an employee rapes a customer or another employee, and is found to have been previously convicted and imprisoned for sexual assault, the firm could be liable because they should have turned up that information before making the hire.
Or, suppose an employment agency places a worker in a controller job in a finance office. The employee embezzles thousands from the company, and it's discovered that the agency did not, in fact, run the thorough background check they had claimed to. The company would have a case against the agency.
Negligent hiring claims may be more common in some industries, especially those with special access to homes or money, or those involving caregivers, such as:
- Real estate
- Condo or apartment management
- Delivery services
- Nursing and convalescent homes
- Home health care
- Utility services
To avoid potential negligent hiring claims, an employer should fairly and thoroughly verify claims and check employee backgrounds.
At the same time, employers must be careful not to run afoul of Equal Employment Opportunity Commission (EEOC) guidance regarding criminal backgrounds. Employers covered by Title XII of the 1964 Civil Rights Act risk lawsuits if they use hiring policies that could disproportionately affect a protected group, such as one based on race or national origin. Since nonwhites are arrested and convicted at higher rates than whites in the U.S., a hiring policy based on criminal records could adversely affect some groups during the hiring process.
Employers should check employment and personal references, verify employment history, and attempt to speak with former supervisors.
Employers should also validate college degrees reported by job candidates and perform credit checks for applicants to jobs involving handling money.
Drug screening is another important step, particularly for potentially hazardous jobs. Employers may also require physicals in some occupations, such as truck driving or any job that entails a lot of strenuous physical activity.
Driving records and driving history should be checked for any job that requires driving or the use of company cars or machinery.
While employers must do diligent background checks, their checks must be fair and nondiscriminatory. Background checks of people who are candidates for the same job should be the same. A clear connection should exist between the background checks conducted and the requirements of the job or of basic employment.
- In a negligent hiring claim, an injured party claims an employer is liable for harm caused by an employee because the employer didn't do a reasonable investigation into the employee's background before hiring them.
- In negligent hiring claims, a court is asked to decide whether an employer exercised reasonable care in hiring an employee for a particular job. Hiring competent workers is an expectation of all employers.
- To avoid negligent hiring claims, an employer should take reasonable precautions in checking a job applicant's background and verifying their claims.
American Bar Association. "Negligent Hiring and Negligent Retention: A State by State Analysis." Accessed Sept. 14, 2020.
American Bar Association. "To Check or Not to Check: New EEOC Enforcement Guidance on the Use of Criminal History Information in Making Hiring Decisions." Accessed Sept. 14, 2020.