An employer can be legally responsible for an employee’s wrongful acts. Negligent hiring is a claim made against an employer based on the premise that an employer knew, or should have known, an employee was likely to behave inappropriately toward other employees.


Criminal history is a routine background check made prior to a hiring decision to avoid negligent hiring. The Society of Human Resource Management (SHRM) surveyed more than 400 of its members earlier this year and revealed 73% conduct a criminal history of potential employees.


Criminal histories have become common for reasons beyond limiting legal exposure to negligent hiring. Conducting a criminal history is an inexpensive selection device and information is readily available. It is a measure to decrease workplace violence, reduce theft and embezzlement, and verify application information.


The Equal Employment Opportunity Commission (EEOC) has always scrutinized criminal history checks based on disparate impact. African-Americans, Hispanics and males are disproportionately represented in the prison population compared with the general population.


According to the EEOC, the employer may consider a prior conviction following these three factors: the nature and gravity of the offense; how old the conviction is, and how the job relates to the type of crime committed. The EEOC’s policy regarding employers who consider arrest records includes these three factors and the employer’s evaluation of whether the applicant actually engaged in the misconduct. Asking about prior arrests is not particularly helpful and carries a burden of disparate impact of minorities.


Employers need to be aware of state laws or provisions preventing certain inquiries. Many states forbid asking about anything that did not result in a record of conviction. Less than 30% of arrests result in convictions. Most employers follow the rule of thumb to only ask for and consider convictions as they relate to the position.


The employer must show the decision to disqualify an applicant is job-related and consistent with business necessity. When disqualifying any applicant, the employer must be able to clearly explain why the person was not hired.


Employers who use a third-party to conduct background checks, including criminal histories must comply with the Fair Credit Reporting Act (FCRA). There are a number of required steps the background company and employer must follow. One step requires the applicant to receive a copy of the report and have an opportunity to dispute any inaccuracies if any adverse action is taken as a result of the background check.


Employers need to balance the rights of the applicants with the need to maintain a safe and healthy workplace.

Rules of Thumb

• Determine the purpose of each aspect of your background investigation.
• Apply the same type of background check to comparable job descriptions.
• Understand and document each applicant’s outcome and reason.
• Train supervisors to interview, make assessments and document their decisions.
• Avoid blanket hiring policy statements which may exclude qualified applicants without a business necessity.

Click below to download this newsletter.