Lesson Four: Employer Negligence - Part I In the first three lessons of this course we exhaustively reviewed the dynamics of discrimination laws in the United States, their proscriptions and their exceptions. Provided that a job applicant makes it beyond these hurdles, and the employer in question is preparing to offer him or her a job, there are several things that HR professionals should know in order to avoid liability in hiring. Employer Negligence Most liability that an employer might bear in the employment context is in the form of negligence, either directly or vicariously. There are other potential grounds for liability in the employment environment, including contract-related matters. However, as the vast majority of employees are not hired subject to a contract, the following discussion will focus mainly on concerns related to employment in the “at will” context. 1 In order to participate in an informed discussion about employment negligence, one must first understand the definition of negligence. Negligence in the legal arena concerns unintentional harm that results from a failure to use the care that would be expected of a reasonable person under the same circumstances (Negligence, n.d.). Negligence is usually a civil tort (wrong), but may rise to the level of criminal culpability if the conduct of the tortfeasor is sufficiently reckless or severe. Generally, negligence has four key elements:  Duty: In order for someone to be guilty of negligence, he or she must have first had a duty of care. An example will serve to illustrate. Suppose a passerby, Steve, comes across a person in peril, Bob. Let us say that Bob is suffering a heart attack and is in need of immediate medical attention. Now, as heartless as it might be for Steve to decline to help Bob (even by simply calling 911), generally no such duty exists for Steve, and thus there can be no negligence. 2 In the employment context, employers almost always have a duty to maintain a safe and secure environment for their employees and customers.  Breach: In addition to the existence of a duty, the accused must have also breached his or her duty. Let us change the facts of the above example and suppose that Steve is a server in a restaurant and Bob is his customer. Under these circumstances, Steve probably does have a duty to help Bob, but if he fulfills that duty, say, by calling 911, then there obviously can be no negligence. This element of breach is the focus of many, if not most, negligence disputes.  Damage(s): In order for someone to be found guilty of negligence, the breach of whatever duty is in question must have resulted in damage of some kind. If Steve fails to help Bob, but Bob recovers from his heart attack on his own with no harm of any kind, he cannot successfully sue Steve for negligence. Harm must have been suffered. Note that damage need not be physical in nature, though. Bodily injury is of c ...

1. Lesson Four: Employer Negligence - Part I
In the first three lessons of this course we exhaustively
reviewed the dynamics of discrimination laws in
the United States, their proscriptions and their exceptions.
Provided that a job applicant makes it
beyond these hurdles, and the employer in question is preparing
to offer him or her a job, there are
several things that HR professionals should know in order to
avoid liability in hiring.
Employer Negligence
Most liability that an employer might bear in the employment
context is in the form of negligence,
either directly or vicariously. There are other potential grounds
for liability in the employment
environment, including contract-related matters. However, as
the vast majority of employees are not
hired subject to a contract, the following discussion will focus
mainly on concerns related to
employment in the “at will” context.
1

2. In order to participate in an informed discussion about
employment negligence, one must first
understand the definition of negligence. Negligence in the legal
arena concerns unintentional harm that
results from a failure to use the care that would be expected of a
reasonable person under the same
circumstances (Negligence, n.d.). Negligence is usually a civil
tort (wrong), but may rise to the level of
criminal culpability if the conduct of the tortfeasor is
sufficiently reckless or severe. Generally,
negligence has four key elements:
she must have first had a duty of
care. An example will serve to illustrate. Suppose a passerby,
Steve, comes across a person in
peril, Bob. Let us say that Bob is suffering a heart attack and is
in need of immediate medical
attention. Now, as heartless as it might be for Steve to decline
to help Bob (even by simply
calling 911), generally no such duty exists for Steve, and thus
there can be no negligence.
2
In the
employment context, employers almost always have a duty to
maintain a safe and secure

3. environment for their employees and customers.
must have also breached his or her
duty. Let us change the facts of the above example and suppose
that Steve is a server in a
restaurant and Bob is his customer. Under these circumstances,
Steve probably does have a duty
to help Bob, but if he fulfills that duty, say, by calling 911, then
there obviously can be no
negligence. This element of breach is the focus of many, if not
most, negligence disputes.
negligence, the breach of whatever duty
is in question must have resulted in damage of some kind. If
Steve fails to help Bob, but Bob
recovers from his heart attack on his own with no harm of any
kind, he cannot successfully sue
Steve for negligence. Harm must have been suffered. Note that
damage need not be physical in
nature, though. Bodily injury is of course an intuitive example,
but emotional harm and even
financial damage (loss of property, value, or earnings) will
suffice for damage.

4. breach of duty on the part of the
accused be both the direct and proximate cause of the damage in
question. Keeping with our
‘Steve and Bob’ example, suppose that Steve fails to help Bob,
but someone else in the
restaurant attempts to help Bob by calling 911. Emergency
services arrive and transport Bob to
the hospital by ambulance, but along the way the ambulance is
in a vehicle accident that badly
injures Bob (injuries unrelated to Bob’s earlier heart attack). It
is unlikely that Steve would be
found responsible for the injuries that Bob sustained as a result
of the ambulance accident,
because the accident was a superseding and intervening cause of
said injuries, and was not
foreseeable by Steve.
3
Establishing Employer Negligence
Now that we have a clear understanding of what negligence is
(and is not), we can discuss the ways in
which employers may be found negligent for the actions of their

5. employees. There are several ways in
which such claims can be established, but two of the most
common are: (1) through proof that an
employer knew or had reason to know that an employee would
behave in a negligent manner; and (2)
through vicarious liability for the actions of employees acting
within the scope of their employment.
Negligence through Notice
The first means of establishing employer negligence is through
proving that the employer either actually
knew, or if not, should have known (this is a legal concept
known as constructive notice) that an
employee had a propensity for behaving in a negligent way.
This concerns the very complicated and
controversial area of employee screening. Generally there are
two types of employee screening tools:
those which look at applicant historical information, and those
which look at current (at the time of
application) applicant circumstances. This lesson will focus on
the two most common types of applicant
history audits that have been established as permissible for
employment purposes, provided that they
are narrowly tailored to a specific purpose and do not infringe
on Title VII protections. Those two types

6. are criminal and credit checks.
4
Criminal Checks
In 2012, the EEOC published a comprehensive set of guidelines
for the propriety of criminal checks used
in employment decisions (Spoden, 2013). Generally, the
guidelines preclude any use of background
checks that amount to either disparate treatment or disparate
impact discrimination (see Lesson One
supra for more information on these concepts). However, this
becomes a very difficult issue for many
reasons. First, criminal data may not be accurate or complete,
depending on whether an employer relies
on public or private data sources. Second, criminal statistics are
known to have disproportionate
correlations with traits like race, such that a blanket exclusion
of any applicants with criminal records
would have the effect (à la disparate impact) of discrimination
based on a protected class. To overcome
a presumption of discriminatory intent, an employer would have
to establish business necessity for such
criminal checks and exclusions, and so in 2012 the EEOC
suggested three factors that should inform any

7. such policy:
1. the nature and severity of the criminal record in question;
2. the amount of time that has passed since conviction and/or
incarceration, if applicable; and
3. the nature of the job for which the applicant is applying
(Equal Employment Opportunity
Commission, 2012).
Using these tools, employers are encouraged to design criminal
background check efforts with the
utmost scrutiny to what is appropriate for the circumstances. If
an applicant committed a crime 20 years
prior to the time of application, and has had an otherwise clean
record since, then unless the former
crime was of a most severe nature (e.g. murder), such history
should probably be given little weight in
employment decisions. If an applicant’s past involves criminal
vehicular behavior (such as criminal DUI),
but the job in question does not involve any driving, such an
applicant should not be excluded. Endless
such hypotheticals could be imagined; the key is to use careful

8. and purposeful reasoning in making such
decisions.
Credit Checks
With respect to credit checks, these hiring tools are permitted
under the Fair Credit Reporting Act
(Federal Trade Commission, 1970). However, several states
have enacted legislation outlawing these
practices. The reasoning behind such checks is the assumption
that if an employee is suffering from
personal financial hardship, he or she might be more inclined to
do unethical or illegal things (such as
stealing) in desperation. While this might appear a harsh
assumption on the part of employers, credit
checks remain fair game (Guerin, n.d.). Public policy concerns
have emerged post-recession about the
notion that these tools might be a dangerous kind of self-
fulfilling prophecy. One can imagine a vicious
cycle wherein a lack of income leads to financial hardship and
poor credit history, and that poor credit
history in turn has the effect of limiting opportunities for future
employment/income, and so on. As with
criminal background checks, if and when credit reporting is
used for employment screening at all, it

9. should be done with great care and precision, so as to craft a
substantial nexus between exclusionary
criteria and job requirements. If a job entails no access to
money or other valuables that could be easily
misappropriated, then credit history alone is probably an
insufficient reason to exclude an applicant.
Conclusion
In this lesson, we introduced the concept of employer
negligence, and explained the two most common
tools which employers use to avoid liability based on applicant
history: the criminal check and the credit
check. In next week’s lesson, we will discuss the tools that HR
professionals may employ for screening
employees based upon current circumstances.
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1
"At will” employment simply refers to employ of the kind that
may be terminated by either employee
or employer at any time with or without notice. Many different
employment conditions may modify the

10. nature of “at will” employment, but such stipulations are
beyond the scope of this lesson.
2
As is discussed immediately infra, however, the existence of
certain circumstances---such as the
relationship of business and customer---may otherwise create a
duty here.
3
The difference between direct and proximate causation is a
rather complex legal concept beyond the
scope of this lesson. HR professionals should focus on
causation in its generally understood meaning,
and consult legal counsel where questions arise.
4
Other types of current status applicant assessments, such as
physical fitness or substance use, may
also be permissible. These shall be discussed in future lessons.
References
Equal Employment Opportunity Commission (2012).
Consideration of arrest and conviction records in
employment decisions under Title VII of the Civil Rights Act of
1964. Retrieved from
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Federal Trade Commission (1970). Fair Credit Reporting Act 15

11. U.S.C. § 1681. Retrieved from
https://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf
-0111-fair-credit-reporting-act.pdf
Guerin, L. (n.d.) Running credit checks on job applicants. Nolo.
Retrieved from
http://www.nolo.com/legal-encyclopedia/running-credit-checks-
applicants-35457.html
Negligence (n.d.) Cornell University Legal Information
Institute. Retrieved from
https://www.law.cornell.edu/wex/negligence
Spoden, M. C. (2013, April 20). Walking a tightrope: EEOC
guidance to avoid negligent hiring.
Construction Executive. Retrieved from
https://enewsletters.constructionexec.com/managingyourbusines
s/2013/04/walking-a-tightrope-eeoc-
guidance-to-avoid-negligent-hiring/
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
https://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf
-0111-fair-credit-reporting-act.pdf
http://www.nolo.com/legal-encyclopedia/running-credit-checks-
applicants-35457.html
https://www.law.cornell.edu/wex/negligence
https://enewsletters.constructionexec.com/managingyourbusines
s/2013/04/walking-a-tightrope-eeoc-guidance-to-avoid-

12. negligent-hiring/
https://enewsletters.constructionexec.com/managingyourbusines
s/2013/04/walking-a-tightrope-eeoc-guidance-to-avoid-
negligent-hiring/