Negligent Hiring Definition

To understand negligent hiring, let’s first review the definition. Negligent hiring is a type of legal claim that can be made by any stakeholder who has been harmed by an employee or 1099 contractor that your company pays for work or services. In most cases, the accused had committed some sort of crime on company time. Some examples include assaulting a client or stealing from a colleague.

Negligent hiring claims begin when there is some occurance in the offendor’s past that might have reasonably predicted the offense in question. For example, a negligent hiring claim could be made if the offendor who assaulted the fellow employee had a prior criminal conviction for violent conduct.

One of the key elements to making a negligent hiring claim stick is that the employer either knew or should have known about the employee’s history but did not take proper steps to consider that history before hiring the person. In other words, a negligent hiring claim asserts that an employer could have predicted and prevented dangerous situations by becoming aware of the risk ahead of time but neglected to do so.

How To Avoid Negligent Hiring Claims

In most cases, negligent hiring claims emerge because the employer neglected to do a background check and did not know about a worker’s history so they could not predict or prevent the danger.

The message (and lesson) here is that you need to do thorough background checks and seriously consider the information revealed to you when making hiring decisions.

What Background Checks Are Necessary?

Which background checks are necessary to avoid costly lawsuits will depend on your company’s line of work. Every background check should include searches to reveal a person’s criminal history at the local, state & federal level and then there are various other searches that may be specific to your industry or the position type.

For example, if you are hiring people who drive company vehicles or even drive their own cars for work, you should obtain a driving record to make sure they are safe drivers. If you are hiring people who use machinery or heavy equipment, it’s a good idea to get them drug tested to make sure they are not having their judgement impaired by recreational drug use. If they work in a high specialized field or a fiduciary role, you should check to see if they possess a valid license. Typically, the position type or industry will dictate search types beyond criminal history.

What Constitutes Disqualifying Information?

Deciding what kinds of information will disqualify a candidate from consideration is no easy task. Getting advice from legal counsel is helpful.

If you run a complete background check and it comes back with no offenses or red flags, you’ve exercised your duty of care and can hire that person without worrying about negligent hiring claims. If this person does harm a fellow employee or other stakeholder, your business is covered against a negligent hiring lawsuit because you did everything in your power to discover if they posed any sort of risk.

Some employers take the threat of negligent hiring too far, denying employment to anyone with any sort of criminal record. However, doing this can lead to a different lawsuit by the Equal Employment Opportunity Commission for employment discrimination. To avoid this, you need to evaluate each criminal record separately, and the criteria below offer some guidance here.

The time since the offense: The more recent a criminal conviction is, the more weight it should be given. If an applicant has an DUI conviction from 20 years ago and nothing on their record since, they’ve demonstrated law-abiding conduct and should be considered for a job rather than being punished for a mistake made so long ago. An applicant with a drug conviction six months ago might be rejected, however.

The severity of the offense: There are certain offenses that your business may consider no matter how much time has passed. Serious or violent felony convictions, like murder, rape or child sexual offenses are automatic disqualifiers for a job at many companies.

Repeat offenses: Repeat offenders may be considered greater threats than one-time offenders. This is because someone with numerous similar offenses has demonstrated a pattern of conduct that could predict future behavior. For example, someone with several assault convictions is probably more likely to assault a fellow employee, vendor or customer than someone with a single offense.

The nature of the job: Offenses should also be considered in how they relate to a person’s job duties. As mentioned previously, a serious driving offense would most likely disqualify an applicant from a driving job, but it should not have the same effect if the offender is applying for a position with no driving requirements. Just ask yourself this question: Could this applicant repeat the offense on his or her record while working for you, and in doing so, would this conduct hurt customers or coworkers? If the answer is yes, then don’t hire them. If not, and they are qualified for the job, then give them a chance.

Most insurance policies will indeminify a company against the acutal costs of a negligent hiring lawsuit. But they cannot protect you from all the time that will be wasted dealing with lawyers, gathering documents, attending depositions, going to court – and the negative impacts this can have on workforce morale, productivity, reputation problems and lost business.

In today’s litigious society, doing background checks is a must and using the information wisely is equally important.