Pros And Cons Of Negligent Hiring

Negligent Hiring: An Ethical and Legal Overview

Introduction
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,
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
For example, “Title VII of the Civil Rights Act may prohibit the rejection of an applicant solely on the basis of an arrest record” and California “prohibits an employer from asking the applicant for any information regarding an arrest that did not result in a conviction.” While these statues do not directly contradict negligent hiring laws, they do severely limit the pre-hiring actions an employer can take to limit their risk of a negligent hiring claim. Conversely, a defendant could argue that they are not guilty of negligent hiring since they were only able to screen and hire potential employee in accordance of the law. Discrimination because of criminal history is among other historical forms discrimination- such as race, creed, color, sex, and national origin- and if an employer is limited under law from discriminating based on criminal background, then the employer can use this as part of a defense against a negligent hiring claim. Therefore, laws that protect an applicant actually help defend a company in any future negligent hiring claim as it proves that they screened and reviewed an applicant to the fullest extent allowed under the