Shawn Smith

Article Summary:

What is negligent hiring, and how can you avoid it?

Negligent Hiring

Imagine the following scenario:

Tech Solutions, a small technology company that installs solutions on customer sites hires John, a new employee who will be responsible for implementing these installations. John came off very well in the interviews, and impressed the Tech Solutions management with his extensive knowledge of the company's and competitive technologies. One day, while visiting a customer site, John blows up after a minor procedural disagreement with a manager there, and strikes the manager, sending him to the hospital with a broken arm. Upon subsequent investigation, it is discovered that John had a history of such behavior, and was fired from his last company for threatening his supervisor.

Is Tech Solutions liable to the injured client for John's behavior? If the company did not follow appropriate procedural safeguards during John's hiring process, it may be deemed responsible for negligent hiring.

Negligent hiring is a legal theory under which employers can be held responsible for injuries caused by their employees if it can be shown that they failed to make reasonable inquiries into the employee's background and suitability for the position. Most negligent hiring lawsuits maintain that the employer failed to conduct appropriate research such as reference checks and investigation of criminal record and other background information that would have disclosed the employee's past misconduct, and that therefore, the employer was negligent for putting a person with criminal or otherwise dangerous tendencies in a position where they could pose a threat to others. An employer may be found liable for negligent hiring when an employee causes harm to a coworker, customer or member of the general public-- whether or not the employee is acting within the scope of his/her job duties.

Under the theory of negligent hiring, even though the employer may not have actually known of the risk presented by the employee, an employer will be held liable if it should have known about the risk. For example, employers have been found liable for negligent hiring in situations when an employee with a history of criminal violence attacked a co-worker, and when a home care worker with a record of sexual assault raped a client in her home. Employers found negligent in the hiring process have been subject to substantial financial penalties, which can include both actual and punitive damages.

The doctrine of negligent hiring is not recognized by every state, and standards for determining liability vary. Although there is no defined list of jobs for which thorough background checks are required, as a general rule, the greater the interface with coworkers, customers and/or the general public that the position requires, the greater the obligation of the employer to conduct appropriate background checks. In addition, the prudent employer will conduct comprehensive background checks when hiring for positions of special trust, such as counselors, care givers, security personnel, etc.

While there are no hard and fast rules to help an employer identify a potentially dangerous employee, an employer with a reasonable and consistently followed pre-employment background checking process can greatly reduce its exposure to negligent hiring claims. A good program should have the following elements:

  • The scope of the pre-employment background check should reflect the specifics of the job sought. For example, if the position involves access to people's homes or property, or sensitive information, the employer should conduct a criminal records check. If the position involves driving a vehicle, motor vehicle department checks should be conducted. On the other hand, if the position requires little contact with the public or customers, and does not involve sensitive information, a rigorous background check is probably not necessary. State laws vary as to information on criminal records and other background information that an employer is permitted to collect; be sure to verify the allowable procedures in your specific location.

  • Carefully review the employment application. During the interview process, ask the candidate to explain any gaps in employment, or between education and employment. Obviously, there is nothing wrong with the existence of a gap in and of itself - but the lack of a reasonable explanation could signal the need for further investigation.

  • Conduct thorough pre-employment reference checks. Almost all employers ask for references, but many don't bother to check them. Always check as many employment references as possible before hiring an applicant. Verify all employment and educational claims.

  • Document the checks conducted. Document all reference and background checks in the company's file, including attempts to contact references who did not respond.

  • Be consistent. Even the most thoughtfully conceived procedures will not protect the employer that fails to use them consistently. Even in the face of pressure to fill a position as quickly as possible, do not cut the process short. Any time you save will be more than lost in defending a negligent hiring lawsuit.

Shawn Smith is a consultant, speaker, attorney and the founder of Next Level Consulting, LLC, an organizational development and management consulting firm. She has worked with a broad range of public, private and non-profit organizations to develop practical programs and strategies to navigate change, increase individual and organizational effectiveness and exceed business objectives. Shawn is the co-author of The HR Answer Book: An Indispensable Guide for Managers and Human Resources Professionals (AMACOM 2004). Contact her for more information through her web site at

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