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New Report on the Exaggerated Threat of Negligent Hiring

Employers frequently claim that they are unable to hire applicants with criminal records because of the risk of liability for negligent hiring. This claim is often made in good faith; management attorneys consistently advise their clients that hiring anyone with a criminal record creates a risk of liability if the employee commits a new offense during the course of his employment. An examination of court decisions on negligent hiring, however, reveals that the risk is much less than employers believe and is confined to a relatively small number of jobs. Properly understood, the risk of negligent hiring liability does not limit the ability of employers to hire the vast majority of former offenders for most jobs.

The National Workrights Institute conducted a search for all reported negligent hiring cases. In the 28 years since the first reported negligent hiring decision, the study found a total of 92 published decisions and based on the volume of civil cases projected that there are only about 270 successful negligent hiring cases every year in the entire United States. The chance that an employer will be successfully sued for negligent hiring even once in a year is a fraction of 1%.

The research also pointed out that not all cases of negligent hiring involve the employment of people with criminal records. Many cases did not involve any type of prior misconduct of the employee.

Cases where employers have been held liable for negligent hiring fall into a short list of specific types of positions: Access to Vulnerable Populations; Home Access; Positions of Authority; Carries a firearm; Commercial and regular use of motor vehicles; Financial Responsibility; and Alcohol servers

The common denominator in these cases is that the jobs in question present special risks that require an employer to use appropriate care when hiring. In addition, two factors appeared to have a clear nexus with identifying risk in hiring: Multiple Convictions and drug related cases particularly those involving selling and use of crack.

The study concludes that negligent hiring is a legitimate concern for employers, however, it is among the smallest legal risks they face and the risk mostly exist with only a small number of well-defined jobs. The authors believe employers can hire the vast majority of people with criminal records for the vast majority of jobs without risking liability for negligent hiring.

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