Negligent hiring refers to a legal theory that states employers should be held liable for the damages caused by their employers because the employer failed to conduct reasonable employment screening checks into the background and appropriateness of employees for their positions. The basis of the majority of negligent hiring lawsuits articulate that the employer neglected to conduct due diligence by checking the employee’s references or performing an employee criminal background check. If it is the case that had the employer conducted the background check, which a reasonable company would and should have done, the background investigation would have revealed the employee’s past wrongdoings, the employer was negligent in hiring the person and putting others at risk.

When a company fails to conduct a background check, the employer can be held legally responsible for a worker, independent contractor or volunteer that causes injury to a customer, coworker or a member of the general public. Whether the employee was acting within the capacity of the job for which he or she was hired does not matter. The legal theory states that even if an employer may not have possessed direct knowledge of the liability posed by an employee, the company is legally responsible because the employer should have known about the threat presented by the employee. Currently, fewer than 50 percent of the states uphold the doctrine of negligent hiring. Also, the criteria for determining negligent hiring differ from state-to-state.

Although the nature of some jobs, such as counselors, child, elderly and disabled care givers, security personnel and others demand that a thorough background check should be conducted on job applicants, there is not a running list of positions that require a comprehensive background check. From a broader perspective, employees who interact with coworkers, clients or the general public should undergo employment screening. The prudent policy for any company is to put in place a pre-employment screening program that is designed to lessen the employers’ exposure to negligent hiring allegations by screening most, if not all of the candidates, volunteers or independent contractors who work for the organization.