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.
Definition of Negligent Hiring
Negligent hiring is a common law tort, defined as a failure to use reasonable care in selection of an employee where there is a foreseeable risk of harm to third parties. What constitutes reasonable care is essentially undefined; its meaning lies in the decisions judges and juries have made in specific cases.
Frequency of Negligent Hiring Cases
The National Workrights Institute conducted a search for all reported negligent hiring cases. In the 28 years since the first reported negligent hiring decision, we found a total of 92 published decisions.
Employers won 18 of these cases. The number of cases in which the plaintiff prevailed was 74, less than 3 cases per year.
While the total number of negligent hiring cases is obviously higher, it still represents a very small risk for employers. In other types of civil cases, approximately 1 of every 100 cases filed results in an appeal. This indicates 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%.
Experienced management attorneys report that they rarely see negligent hiring cases. NWI spoke with several leading management employment lawyers. Each of them told us they see at most one negligent hiring case per year. Several employers we spoke to reported that they had never been sued for negligent hiring.
Negligent Hiring and Criminal Records
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.
The most common example is negligent retention (17 cases). In a negligent retention case, the employer is found liable not because of any misconduct by the employee before they were hired, but because the employer failed to respond appropriately to workplace misconduct (not necessarily criminal) and the employee later harmed a third party.
Colon v. Jarvis is a typical such case. In Colon, the employee was a teacher. On several occasions, complaints were lodged against him for improper conduct with students. The school district, however, took no action. When Colon’s next victim sued, the court held that the district was liable. Its negligence in responding to the first complaints was responsible for Colon having the opportunity to molest the plaintiff.
While negligent retention cases bear a superficial resemblance to negligent hiring, the action required by an employer to avoid liability is totally different. To avoid negligent retention liability, an employer must pay close attention to the conduct of its employees after they have been hired and take appropriate action. Refusing to hire applicants with prior misconduct does not prevent liability for negligent retention.
Liability Not Based on Employee Conduct
Some cases of negligent hiring do not involve employee misconduct at any time (4 cases). The liability arises from the employer’s decision to hire applicants who were not qualified for the position in question.
For example, in Piney Grove Baptist Church v. Goss, the employer hired a construction foreman who had no training or experience in the use of scaffolding platforms. The platforms created under his supervision were defective and collapsed, killing another worker.
Failure to Investigate
In many negligent hiring cases, liability is found, not because the employer hired an applicant with a record of misconduct, but because the employer hired an applicant for a sensitive position without adequately checking his background (7 cases).
Typical of such cases is Interim Healthcare of Fort Wayne v. Moyer. The employer hired applicant for a home health aide position. This is an extremely sensitive position in which the employee has unsupervised access over a vulnerable person in an isolated context. Before hiring the applicant for this position, the employer conducted a criminal record check, which disclosed no record. However, it spoke with only two of the applicant’s former employers. Among the four that it omitted was his most recent employer. The court held that this was an inadequate investigation for such a sensitive position.
In one case, Sumner &. Foster v. EZ TV Rentals, the court found that the employee had directed the employees to take property it believed to be its own from the plaintiff’s apartment.
Cases Based upon Prior Misconduct
Eliminating the above from the analysis leaves a total of 55 reported cases in which the employer was found negligent because it hired an applicant with prior misconduct over the course of 28 years; or approximately 196 such cases filed in the entire country annually.
By comparison, approximately 5,000 wrongful discharge cases are filed annually, half of which are successful. An employer is 10 times as likely to face liability for wrongful discharge as for negligent hiring. This does not mean that employers should ignore the issue, but it does mean that the risk to employers is extremely low.
When Is an Employer Liable?
Cases where employers have been held liable for negligent hiring fall into a short list of specific types of positions.
Access to Vulnerable Populations. This includes teaches, priests, nurses, and other employees who have access to children, the elderly, or other people who are not in a position to defend themselves.
Access need not be a regular part of the job for an employer to face liability. In Pittard v. Four Seasons Motor Inn the employee assisted in preparing banquets. While this did not involve contact with minor guests, the employee had access to all areas of the hotel except for guest rooms. He encountered a minor guest in the pool area and sexually assaulted her. The court found it foreseeable that the employee would encounter unescorted minors from time to time and held that the hotel should not have hired someone it knew had a record of violent behavior.
Home Access. In recognition that employees who enter customers’ homes will often encounter people who are unable to protect themselves, courts treat such positions as involving access to vulnerable populations.
Positions of Authority. Police officers and prison guards are authorized to use force in the course of their work.
Firearms. Some jobs that do not involve the use of force involve access to firearms. Recorded cases involve a camp counselor and salesman in a gun store.
Motor Vehicles. Courts recognize that operating a motor vehicle is hazardous and require employers to take care in selecting employees where this is part of the job.
Financial Responsibility. This includes jobs where the employee has the ability to steal money or valuable property, and jobs that present opportunities to commit fraud.
Alcohol. Some courts have found employers liable for negligent hiring in jobs involving the serving of alcohol.
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.
Of the 45 reported cases involving true negligent hiring, 43 (95%) involved one of the above types of job. The two exceptions are Glover v. Augustineand Coleman v. Housing Authority of Americus. In Glover, the employee was an elevator operator who assaulted a female passenger. His access to vulnerable people was brief and occasional. However, he had a lengthy criminal record, including two convictions for sexual abuse in the first degree and was a registered sex offender. In view of all the circumstances, it is difficult to argue that the employer acted responsibly. In Coleman, the employee sexually harassed a co-worker for three years. Management was aware but took no action. The employer’s liability for sexual harassment was clear. The fact that the employer was aware that the employee had “problems with women” in previous jobs led to an additional finding of negligent hiring. It is debatable, however, that the employer would have been found liable based on this alone.
Even when the job entails special risks, the employer is not automatically responsible for subsequent harm when it hires someone with a history of misconduct. There must also be a connection (nexus) between the nature of the job and the previous misconduct.
In the 45 recorded cases negligent hiring, 39 (87%) included a clear nexus. Most of the exceptions fell into two categories.
In Harrington v. Louisiana State Board of Education, the employer was held liable when a student was raped by a teacher. The teacher had no history of violence or sexual offenses. He did, however, have convictions for grand larceny, interstate transportation of forged securities, and possession of marijuana with intent to distribute. There were two similar cases, one of which involved an employee with 56 prior convictions.
One can debate the wisdom of equating multiple convictions with nexus. But it is a predictable rule which employers can avoid liability by following.
Two other cases involved drugs. In Harvey Freeman & Sons v. Stanley the employees were resident managers of an apartment complex that the employer knew were selling illegal drugs and were “sexual swingers.” Their employer was found liable when they sexually assaulted a minor tenant. In Stephens v. A-Able Rents, Inc. the employee was a delivery driver (who regularly entered customers’ homes) who had been fired from his previous job for using drugs while driving and was known to smoke crack cocaine. His employer was held responsible when he assaulted and attempted to rape a customer.
How far the “drug exception” to the nexus requirement extends is not clear. But the two recorded cases involve selling drugs and the use of crack. It seems unlikely that it includes people who have been convicted of possession of marijuana or other “soft” drugs.
The final exception is Rockwell v. Sun Harbor Budget Suites, in which a security guard murdered a tenant when she broke off her affair with him. The employee had been fired from several previous jobs for aggressive and threatening verbal behavior. He was also a registered sex offender but had no other police record. The court’s conclusion that a history of threatening verbal behavior meets the nexus requirement for a subsequent murder is debatable.
In total, 98% (44 of 45) cases involved situations in which there was a nexus or the case met one of two identifiable exceptions to the nexus rule.
Negligent hiring is a legitimate concern for employers. However, it is among the smallest legal risks they face. Only a small number of well-defined jobs create any potential risk. For millions of ordinary manufacturing and office jobs, negligent hiring is not an issue.
Even for the few sensitive positions where negligent hiring is a potential source of liability, employers can safely hire people with criminal records unless their prior conviction:
Employers can hire the vast majority of people with criminal records for the vast majority of jobs without risking liability for negligent hiring.
 742 N.Y.S.2d 384 (2002)
 565 S.E.2d 569 (2002)
 In some such cases, there was prior misconduct an investigation would have revealed, but the court did not rule on whether the misconduct was adequate to support a finding of liability because the decision involved an appeal of a summary judgment. In such cases, we assumed that the court would have found the misconduct sufficient to support liability. Only where there was no prior misconduct by the employee did we categorize the holding as based on a failure to investigate.
 746 N.E.2d 429 (2001)
 483 So.2d 843 (1986)
 688 P.2d 333 (1984)
 832 N.Y.2d 184 (2007)
 381 S.E.2d 303 (1989)
 The opinion does not include the exact number of convictions.
 Courts consider crimes of violence, including sexual assault, to have a nexus with other acts of violence. The specific offense need not be the same. For example, a conviction of armed robbery would be considered to have a nexus with a subsequent aggravated assault.
 714 So.2d 845 (1998)
 378 S.E.2d 857 (1989)
 654 N.E.2d 1315 (1995)
 925 P.2d 1175 (1996)