Avoiding Legal Liability For Negligent Hiring
: What legal problems can be avoided by conducting background
checks on prospective employees?
: Conducting background checks to ensure that a business hires trust-
worthy, dependable and safe employees makes business sense, but it also
makes legal sense. Employees can create legal liability for a business in sev-
eral ways. Below is a description of two primary types of liability:
“respondeat superior” liability and liability for negligent hiring--and how
background checks help reduce the risk of legal liability.
Liability for Harm to Others - Respondeat Superior
A business may be held liable an employee's careless or reckless acts
that harm others, such as customers, coworkers, or members of the general
public. In fact, lawsuits filed against businesses for harm caused by employ-
ees are among the most common civil lawsuits filed in the
Employers are not liable for every act of an em-
ployee. For an employer to be liable for injury caused by a
negligent employee, the employee must be acting “within
the course and scope of their employment.” Attorneys refer
to this principle of liability with the Latin phrase
% & '
For example, a pizzeria is liable when its reckless
'( delivery driver causes an accident while delivering pizza. A !quot;!
contractor may be liable if a worker with insufficient experi-
ence negligently operates construction equipment. A hospi-
tal is negligent if a staff member administers the wrong
medicine to a patient. A financial advisor may be liable for a
bookkeeper who embezzles funds.
A background check may reveal a history of reckless
driving. It may reveal misrepresentations regarding educa-
tion, training and experience. It may show a history of civil lawsuits demon-
strating a lack of trustworthiness. It may reveal a problematic employment
history. Investing in pre-employment background checks can therefore pay divi-
dends by minimizing the risk that unqualified employees create legal liability for
Negligent Hiring and Retention
Every employer has a legal duty to use care in selecting and retaining
only competent and safe employees. If an employer quot;breachesquot; this duty by care-
lessly hiring an unsuitable employee, the employer may be held liable for harm
caused by the employee. This is true even if the employee acts outside the
quot;course and scope of employment.quot;
Example: A cable company that sends technicians to work unsupervised
in customers' homes hires a new technician without screening his background. A
few weeks after hire, the technician returns to the home of a female customer
after work and violently assaults her. Is the company liable?
Under the doctrine of respondeat superior, one could argue no, because
the violent attack was outside the technician's scope of work. However, if the
technician had a history of violent crime, the cable company could be held liable
for negligently hiring him and putting him in contact with customers. Had it
acted with the appropriate level of care by completing
the background check, it would have known not to hire
Even where a rogue employee makes it through
the screening process, the employer's evidence of a
background check is a strong defense to the negligent
. ' 02
For example, assume the same cable company
conducted a background check before hiring a techni- 3
cian, and the background was clean, but the technician 0, ,' (
nevertheless assaulted the female customer. Perhaps it 6
could be shown that the technician had a violent his- $ )
tory, but the state criminal records were misfiled and 7 8
therefore missed by a standard background check. The
company could still defend itself by proving that it
met its duty of care by conducting check. After all, the duty of care is satisfied by
taking reasonable precautions. Although it hired a violent criminal, the company
cannot be faulted, because it took prudent steps to discharge its duty of care.
Hiring the right employees--ones who are less likely to engage in care-
less, reckless or intentional misconduct--is therefore a crucial means to limit the
risk of lawsuits.
Negligent Hiring Cases
: Can I automatically disqual-
ify any job applicant who has a % ' quot;!
' ( '
. 7 )&9 :
: No. Both California and
federal law provide certain protec-
% ' 3
tions for applicants with a criminal
; +! '
In all instances, employers
are entitled to ask about prior fel-
ony convictions, provided that a % ' quot; !, ,
conviction will not necessarily dis- '! 0
qualify the applicant from employ- &' =,
A blanket policy against < 4 $ )
hiring individuals with conviction
records may violate federal anti- % quot;! (
discrimination laws, according to.
the Equal Employment Opportu-
nity Commission (EEOC). The
# : *)
EEOC has the responsibility of
enforcing, among other laws, Title
VII of the Civil Rights Act of '
1964, as amended (Title VII), 42 ' ' ,
U.S.C. § 2000e et seq., which pro- &
hibits discrimination against appli- / / >9
cants and employees on the basis
of race, color, sex, religion or na- %! ' '
Although Title VII does
not, on its face, prohibit discrimi-
3> & '
nation on the basis of conviction
records, the EEOC and courts have
concluded that a policy or practice
1 :7 ? &9
of excluding individuals from em-
ployment on the basis of their con- % '
viction records may have an ad- 2 &,
verse impact on certain minority ' &'
groups in light of statistics show- ;
ing that they are convicted at a rate @ A
disproportionate to their represen-
(Continued on page 4)
1 C )
(Continued from page 3)
tion. Also prohibited is an consideration of
tation in the population. If there is such an
information concerning a referral to, and
impact, the policy or practice can be main-
participation in, any pretrial or posttrial di-
tained only if the employer can show a busi-
version program, as well as any conviction
for which the record has been judicially or-
Whether there is a business need for
dered sealed, expunged, or statutorily eradi-
excluding individuals with conviction re-
cated (e.g., sealed juvenile offense records
cords from particular jobs depends upon:
and expunged misdemeanor convictions).
• the nature and gravity of the offense or
Labor Code 432.8 prohibits consideration of
offenses; certain misdemeanor marijuana convictions.
• the time that has passed since the con-
There is one exception to the prohi-
viction and/or completion of the sen- bition against asking about arrests not re-
tence; and sulting in a conviction: an employer may
• the nature of the job held or sought. ask about an arrest for which the applicant
is out on bail or on his or her own recogni-
For example, a conviction 20 years
ago for a non-violent felony by a construc- zance pending trial.
tion worker could be overlooked; whereas a Conclusion
recent violent crime by a children’s day- Avoiding liability for negligent hir-
care worker could probably disqualify the ing requires diligence in the form of back-
applicant. ground checks and careful observation of
California law offers additional pro- applicant’s legal rights. Retaining a reliable
tections. Labor Code section 432.7 prohibits and qualified provider of background
employers from inquiring about arrests or screening is a basic but crucial first step.
detentions that did not result in a convic-
Allied Information Resource, Inc. thanks
attorney Christopher W. Olmsted for preparing this
!quot;# $ $
article. You may contact him at Barker Olmsted &
Barnier with any questions regarding labor and
()"( "! %
()"( "! *
Sign up for regular Legal Updates
containing articles on employment law by visiting
! # ! &' &
quot; $% % ( )
!quot; # $% &