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Avoiding Negligent Hiring and Retention

Updated: Aug 19, 2022

Negligent hiring is a legal claim made by an employee or other individual who was hurt or otherwise damaged by an individual employed by an organization, typically while on company time. Examples can include assaulting a coworker at work or causing a motor vehicle accident on the job while impaired. When the employee in question has a history that revealed behavior that may have warranted further review, negligent hiring claims can be made. To refer to the previous examples, if the employees had a history of criminal violence or previous DUI convictions, negligent hiring claims could be asserted.

In essence, a negligent hiring claim states an employer had the resources and information to reasonably believe such behavior may occur but neglected to take reasonable preventive measures. Either the employer neglected to run background checks to uncover red flags in the employee’s history, or they ran the checks but failed to recognize the potential danger. However, Fair Chance Hiring laws may offer some protection.

Elements required to prove negligent hiring include:

  1. The employer neglected to exercise reasonable care during the hiring process.

  2. The employee had a history of dangerous inclinations or was demonstrably incompetent for the position.

  3. The dangerous inclinations or incompetence would have been apparent to the employer had reasonable care been exercised.

  4. As a result of neglecting to exercise reasonable care, the plaintiff suffered injury or harm.

The message to employers is clear: employers have a legal duty to exercise reasonable care when making hiring decisions. It’s essential to conduct thorough background checks and make wise use of the results when making hiring decisions.

Negligent retention claims are essentially the same as negligent hiring. The difference lies in the relationship and the timing; rather than relying on background checks, negligent hiring claims assert that there is a point in time where the employer personally knew about but ignored an employee’s dangerous tendencies.

Negligent retention claims require the following:

  1. An employment relationship

  2. Incompetence or criminality of the employee in question

  3. Actual knowledge by the employer of the incompetence or criminality

  4. A specific act by the employee that caused injury to the plaintiff

  5. Proximate causation – in other words, if the employer had not been negligent, the injury would not have happened

Negligent retention claims focus on whether an employer knew or should have known that the employee posed a risk. Courts consider the following when answering that question:

  • The employee’s work record

  • Prior complaints about the employee

  • Job-related inappropriate behavior

  • Witness accounts (managers or supervisors) of inappropriate behavior

Has the employee’s behavior at work made adverse events at all foreseeable? If the answer is yes, it might be negligent retention.

The Role of Screening and Background Check Policies

This brief examination of negligent hiring and retention claims makes one thing abundantly clear: pre-employment background screening and continuous screening or monitoring are essential elements of avoiding these types of lawsuits. The types of checks an organization runs depend largely on the nature of its business. Some checks are standard across all industries. Job applicants expect a criminal background check, sex offender check, and Social Security Trace (SST) to be part of the hiring process for most jobs. Other checks such as the following are more industry-specific:

  • Motor vehicle reports for delivery or transportation workers ensure the hiring of responsible and safe drivers.

  • Professional license checks are used by organizations, such as healthcare companies hiring doctors and nurses, to protect against hiring a fraud.

  • Credit reports are run by banks and other financial institutions to protect against theft and embezzlement.

Choosing which screenings to use during the hiring process requires employers and HR managers to consider the following:

  • Mandates. Many positions require specific background checks by law. For example, transportation workers are required by the Department of Transportation to pass a motor vehicle screening while teachers are required to have a clean criminal record.

  • Common Sense and Overall Risk Assessment. A careful examination of the positions within an organization will reveal what background checks make the most sense.

The same holds true for continuous monitoring and/or periodic screening of current employees to avoid negligent retention suits. Many employers choose to use ongoing driving record and criminal record monitoring as well as random drug tests and other tools to ensure a safe workplace and protect against negligence. Background check vendors provide tools that alert employers if potentially risky behavior pops up in an employee’s record.

Determining Disqualification

Obtaining background check information is the easy part; determining what information in the report serves to disqualify an individual from employment is the hard part. Since negligent hiring suits hinge upon the discovery of red flags, many employers are tempted to adopt an extreme policy of excluding all individuals with any criminal history from employment. While these practices might serve to protect against negligent hiring suits, they open the door to discrimination lawsuits from the Equal Employment Opportunity Commission. The following tips will help avoid both negligent hiring and discrimination claims:

  • Consider Time. More recent criminal offenses are more relevant than the old offenses. An applicant with a single 20-year-old crime on their record has demonstrated clean and honest living for two decades. That is the relevant fact, not the ancient crime.

  • Consider Severity. Some crimes are more serious than others. Violent crimes such as murder or rape could be disqualifiers, but the same is not always true for non-violent crimes or misdemeanors. However, all criminal activity must be considered individually and in context.

  • Consider Repetition. Repeat offenders may be riskier than one-time criminals.

  • Consider Restitution. Has the individual demonstrated restitution for their crimes? Can they demonstrate rehabilitation?

  • Consider the Nature of the Job. Wise employers consider carefully how an employee’s behavior relates to their position in the organization. While it may be reasonable to disqualify someone for a driving job because of a previous DUI conviction, that DUI probably doesn’t disqualify them for a desk job. If the offense has no direct correlation to the position at hand, it shouldn’t be disqualifying.

Due Diligence

Exercising due diligence with clear and consistent screening policies shields and defends employers from negligence claims. Seamless Search's thorough and reliable employment background screenings will protect your organization and improve your hiring practices. Contact us today to discuss how we can help you make your workplace safer


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