Overview: The benefits of conducting preemployment screening of job applicants cannot be overstated. Virtually every state recognizes a claim of negligent hiring against an employer if it fails to exercise reasonable care in the hiring process to ensure that a new employee is fit for the position and a third party is injured due to the employer's failure. Typically, in order to prevail, the injured party must prove that the employer knew or should have known that the employee had a propensity to engage in the alleged conduct and that he or she was reasonably likely to engage in such conduct.
Therefore, in order to avoid exposure to a negligent hiring claim, employers must perform due diligence on prospective employees in order to verify his or her fitness for duty. This includes requiring the prospective employee to complete a job application, interviewing the candidate, performing employee background checks, and verifying the information that an employee has provided to the employer on a resume and/or a job application. Sometimes the position that the employee is applying for will dictate the level of reasonable care required. In all cases, employers must be mindful of federal and state law variations when performing these screening methods.
Trends: Several states have passed laws protecting employers from negligent hiring and retention claims. For instance, an employee's certificate of employability may provide a negligent hiring defense for Tennessee employers. Further, Georgia law shields an employer from negligence claims arising from the hiring or retention of an employee if the individual has completed treatment or was pardoned. Minnesota also passed a law that an employee's or former employee's criminal history record that has been expunged may not be introduced as evidence against a private employer or its employees or agents in certain circumstances. Connecticut, Louisiana, Montana and Indiana have also enacted laws that protect employers from negligence claims.
Author: Melissa A. Silver, JD, Legal Editor
Updated to include forthcoming St. Louis ban the box law.
Updated to reflect amendment to law regarding expunged or sealed criminal history records, effective October 1, 2019.
Updated to reflect state law affecting negligent hiring claims, effective July 1, 2019.
Updated to reflect law protecting employers from certain negligent hiring claims, effective June 28, 2019.
Updated to reflect law regarding decriminalized offenses, effective July 1, 2019.
Updated to include law regarding background checks, effective June 27, 2019.
Updated to reflect expanded discrimination protections based on sexual orientation and gender identity, effective June 19, 2019.
Updated to reflect provisions of the Illinois Service Member Employment and Reemployment Rights Act, effective January 1, 2019.
Guidance for HR on the risks of negligent hiring claims and how to prevent them.