The subject of negligent hiring has gained considerable attention in the past few years as companies recognize the ethical and legal issues associated with negligent hiring. Currently, all fifty states and the District of Columbia acknowledge some form of negligent hiring as a cause of action for liability although the law has been inconsistently applied among the federal and state courts in a number of cases. While the legal requirement of negligent hiring differs from state to state, it is generally accepted to be a “cause of action that holds employers civilly liable for the tortuous conduct of any employee.” Because of the increase prevalence of negligent hiring lawsuits, the legal and business community has responded by developing guidelines and suggestions for dealing with negligent hiring. This paper will identify the ethical and legal issues surrounding negligent hiring as well as possible guidelines for preventing negligent hiring lawsuits. Unethical
The ethical arguments of negligent hiring are generally separated into two categories. First, there is the argument that a hiring manager has a duty to ensure the safety of everyone in a workplace- including employee, customers, and the public depending on the type of job. By enforcing negligent hiring, it incentivizes employers to carefully select, screen, review, and supervise employees so as to ensure a safe working environment rather than shirking the responsibility of selecting the most qualified person. And in fact, according to Miller and Fenton, negligent hiring cases or issues most often occur when an employer has hired an employee with an establish history of crime, violence, or unwarranted behavior. Simply put, although the employer had a reasonable expectation to research an applicant, they failed to perform even the most general research about the employee entering their workplace. For example, the Oklahoma a school district was sued for the negligent hiring of a teacher after the teacher sexually molested three boys. The teacher was convicted of sodomy in 1972, about 12 years before being hired at the school district.
On the contrary, measures taken to prevent negligent hiring could be detrimental to the rehabilitation of ex-convicts. As quoted by Shepard, the “purposes of the American criminal justice system are to punish, incapacitate, and rehabilitate criminal offenders, and to deter those offenders and potential offenders.” It stands to reason that if those with a criminal history become even less attractive in the workforce, they would likely be unable to rehabilitate themselves to into normal society. Due to negligent hiring laws, employers may be more likely to require background investigations for potential employees. According to a 2009 survey from the Society for Human Resource Management, “73% of employers do criminal background checks for any job candidates, 19% for selected candidates, and 7% not at all.” While it is certainly reasonable for employers to conduct a criminal background investigation for jobs that work closely with the public or has duties that require a ‘no-criminal background’, the increasing prevalence of background investigations suggest that employers are using it merely as a tool to prevent negligent hiring lawsuits rather than as a tool for selecting the most qualified candidates. A potential employee’s interaction with the public does not necessarily mean it is reasonable, or even ethical, to warrant a criminal background check. Ethically, an employer should only conduct a criminal background check if there is a reasonable need to do according to the duties and the environment of the job position. Legal
Despite the possibility of lowering the rates of rehabilitation among ex-convicts, the U.S. legal system has had a number of cases with regards to negligent hiring in recent years. While each state handles negligent hiring differently (some...