Authored By W.Barry Nixon, SHRM- CMP
Negligent hiring. Workrights Institute and TalentWise each agree that this “failure to use reasonable care in the selection of an employee when there is a foreseeable risk of harm to third parties” could be avoided if employers would get serious about their background screening process.
In cases of negligent hiring, employers can be held liable for harm that comes to any of its employees due to hiring an employee whose background should have been flagged as a potential risk. Legal counsels and security managers have cemented the view that hiring a person with a history of criminal behavior as indicated by arrest and conviction records was a predicting factor of the likelihood of putting the employer’s property or employees at risk.
But, there is a “dirty little secret about negligent hiring” that demonstrates that after several years of having successfully re-integrated into society and maintained employment, the risk of an ex-offender reoffending is no higher than the rate for someone with no criminal record. Given the actual number of cases of negligent hiring lawsuits, this traditional reason for not hiring ex-offenders begins to change. Ex-offenders should be given the same individual merit-based evaluation as other potential employees.
According to Workrights Institute, only 92 published decisions of negligent hiring have been reported in 28 years – or an average of roughly three cases each year out of millions of labor related lawsuits filed annually in the United States. Further, the report states that the chance of an employer successfully being sued for negligent hiring is a fraction of 1%.
The importance of performing a comprehensive background check for all potential hires is not dampened by these results, however. The screening should include checking records for at least seven years (or more for high-paying and senior jobs) for each place the applicant has lived and/or worked. Federal records also should be checked, as well as a multi-jurisdictional national database to review a wider web of records. It would be extremely difficult for a jury or judge to determine a lack of due diligence if a proper screening process is completed.
Despite the low number of negligent hiring cases, the Workrights Institute report also showed that “Employers won 18 of these cases and that the number of cases in which the plaintiff prevailed was 74.” With that said, though, employers are losing 80% of these cases and the possibility of a successful legal claim can result in large jury rewards, such as the $26.5 million case against a home health company who hired a visiting nurse who killed a patient. A background check would have revealed the employee’s history of felonies.
Workrights Institute has revealed that multiple convictions, use of “heavy” drugs, and a history of threatening behavior all should raise red flags as predictors for possible future problematic activity.
In conclusion, although a criminal record does not necessarily mean potential harm for a business or its employees, it is important to proceed with a comprehensive background check, especially for jobs that have been identified as having high risk or are characterized as sensitive. This, paired with knowledge of the EEOC Guidance on Using Arrest and Conviction Records for Hiring, employers could save their company millions of dollars and the risk of potential harm to its employees.