Mastering Strategic Hiring: Maximizing Background Checks and Avoiding Negligent Hiring Lawsuits

Employers may have a wide range of perspectives when it comes to hiring candidates with criminal records. While some employers spend a great deal of effort actively seeking out candidates with criminal records, other employers may have a general aversion to those same candidates. There’s no doubt there are potential benefits for employers who hire candidates with criminal records such as access to a larger talent pool, government incentives, increased employee loyalty and dedication, etc., but there are also risks to consider as well.

Regardless of where an employer stands on this issue, employers should utilize the same best practices in the intricate landscape of talent acquisition. This article explores how employers may ensure they are getting the best candidate for the open position by utilizing thorough background checks, and at the same time, limiting their exposure to potential risks from negligent hiring lawsuits.

Benefits for Employers Who Conduct Background Checks

Most employers look to background checks to mitigate risk and gain additional information that provides a tremendous amount of insight into the candidate’s fitness for employment and the likelihood that an individual will be a good fit for the position in question and the organization’s overall culture. Some of the advantages of conducting consistent background checks include:

1. Customized Hiring: Employers may tailor background checks based on the specific requirements of the position (not the individual), ensuring that the screening process is relevant to the responsibilities and demands of the job.
2. Quality of Hire: Background checks enable employers to verify a candidate’s qualifications, experience, and credentials. This ensures that employers hire candidates with the skills and expertise necessary for the job, contributing to a higher quality of hire.
3. Protecting Assets and Confidential Information: Background checks help identify candidates with a history of dishonesty or integrity issues. This is crucial for protecting the organization’s assets, sensitive information, and trade secrets.
4. Compliance with Industry Standards: Certain industries and roles may require employees to meet specific regulatory or compliance standards. Conducting background checks ensures that employers adhere to industry regulations and standards.
5. Enhanced Employee Trust: Employees are likely to have greater trust in their colleagues and the organization when they know that thorough background checks are conducted. This may foster a positive workplace culture.
6. Preventing Workplace Violence: Identifying potential behavioral red flags in a candidate’s history may help prevent incidents of workplace violence. Background checks contribute to creating a safer and more secure work environment.
7. Legal Defensibility: In case of disputes or legal challenges related to hiring decisions, having a documented and standardized background check process provides employers with a defensible position.

Negligent Hiring Lawsuits

The last two items listed above (items #6 and #7) relate to one of the primary reasons why employers are hesitant to hire candidates with criminal records: negligent hiring lawsuits. In many ways, the risk of negligent hiring lawsuits places much of the ownership on the employer to create a safe workplace environment. While these cases are relatively rare, there’s no question this is a risk employers must understand and address to ensure the safety of all employees and help mitigate potential legal risks.

Employers may potentially lose a negligent hiring lawsuit if they fail to exercise reasonable care in the hiring process, leading to harm caused by an employee. Key factors that may contribute to an employer losing a negligent hiring case include:

1. Inadequate Background Checks: If an employer neglects to conduct thorough background checks or fails to verify critical information such as criminal history, qualifications, or employment history, it may be considered a lack of due diligence.
2. Inconsistent Hiring Practices: Employers who apply inconsistent hiring policies or deviate from established procedures may face challenges in defending against negligent hiring claims. Consistency in the application of hiring practices is crucial.
3. Failure to Verify Credentials: Employers may be at risk if they hire an employee based on false or unverified credentials. Failing to confirm education, professional licenses, or certifications may be detrimental in a negligent hiring case.
4. Ignoring Red Flags: If there are clear warning signs or red flags in a candidate’s background, such as a history of violent behavior or dishonesty, and the employer ignores or downplays these indicators, it may be viewed as negligence.
5. Lack of Written Policies: If an employer does not have written policies outlining hiring procedures, job requirements, and the criteria used for candidate evaluation, it may be difficult to demonstrate that reasonable care was exercised in the hiring process.
6. Failure to Consider Job Requirements: If an employer hires a candidate without ensuring they meet the specific job requirements or qualifications, it may be perceived as negligence, especially if the lack of qualifications contributes to the harm caused.

In summary, employers may lose a negligent hiring lawsuit if they demonstrate a lack of reasonable care and due diligence in the hiring process, leading to harm caused by an employee. Implementing thorough and consistent hiring practices is crucial to minimizing this risk.

Summary

Overall, the benefits of conducting background checks extend beyond legal compliance, encompassing aspects of hiring quality, workplace safety, and overall organizational well-being. It’s always best practice for employers to focus on exercising due diligence for all candidates, not just those with criminal records; this ensures the right people are placed into the right positions. If employers implement consistent and compliant hiring practices and utilize background checks thoroughly, the potential risks are largely mitigated and open job positions are much more likely to be filled with the best, most qualified candidates.

New Focus HR has years of experience helping employers create, implement, and maintain/administer a highly effective procedure for their hiring process. Creating a safe and effective workplace environment is every employer’s goal and New Focus HR is here to help.

For additional information regarding background checks and/or the hiring process as a whole, please contact us at NewFocusHR.com.

Updated by: Jason Love, SHRM-CP, CLSSGB

                       HR Consultant

                       1/19/2024

Sources:

• “How to Address Negligent Hiring Concerns”, Margaret M. Clark, Society for Human Resource Management (SHRM), 2/27/2019
• “Double-Check Criminal Background Checks”, Jonathan A. Siegel, Society for Human Resource Management (SHRM), 11/26/2019