Negligent hiring is an employer’s failure to exercise reasonable care when hiring someone whose known or reasonably discoverable unfitness creates a foreseeable risk of harm to others. An employer may face legal liability if that hiring decision contributes to an employee injuring another person.
Negligent hiring is a form of employment-related negligence. It focuses on the employer’s decision to hire someone despite risks the employer knew or should reasonably have discovered before hiring.
A negligent hiring claim generally requires more than a missing background check or an employee’s misconduct. The injured party must establish the legal elements of the claim, including an appropriate connection between the employer’s hiring decision and the resulting harm. Specific requirements depend on applicable state law.
What Is an Example of Negligent Hiring?
A delivery company hires a driver without verifying that the applicant holds the driver’s license required for the job. The applicant’s license has been suspended because of serious driving violations.
The company assigns the new employee to drive a delivery vehicle. While making a delivery, the driver operates the vehicle dangerously and causes an accident that injures a pedestrian.
The injured person may bring a negligent hiring claim against the company, arguing that:
- The employer had a responsibility to evaluate whether the applicant was qualified to drive.
- Reasonable verification would have revealed the suspended license and relevant driving history.
- The information indicated a foreseeable risk associated with operating company vehicles.
- The driver’s conduct caused the injury, and the employer’s hiring decision contributed to the harm.
The employer’s liability would depend on the evidence and applicable law. The accident alone would not establish negligent hiring.
This example illustrates the central relationship behind negligent hiring: an employer’s failure to investigate a relevant, reasonably discoverable risk can create liability when that risk leads to foreseeable harm.
What Makes an Employer Liable for Negligent Hiring?
Negligent hiring liability generally depends on the employer’s duty of care, the employee’s fitness for the job, the foreseeability of harm, and the connection between the hiring decision and the injury.
The legal requirements vary by jurisdiction. For example, California Civil Jury Instruction 426 identifies employee unfitness, employer knowledge, resulting harm, and causation among the elements relevant to negligent hiring, supervision, or retention claims.
1. The Employer Had a Duty to Exercise Reasonable Care
An employer’s duty concerns the care reasonably required when selecting a person for a particular position.
The appropriate level of investigation depends on circumstances, including the responsibilities of the job and the risks those responsibilities create.
A driver, for example, may need a valid license and an acceptable driving history. A professional who works directly with vulnerable individuals may be subject to different screening requirements.
Reasonable care does not necessarily require every available background check for every position.
2. The Employee Presented a Relevant Risk
The employee’s background, qualifications, or conduct must reveal an issue relevant to the alleged harm.
The employer may have known about the issue directly or may reasonably have been expected to discover it through appropriate hiring procedures.
For example, an employer that knowingly assigns an unlicensed applicant to operate a commercial vehicle may face a different risk than an employer that hires a qualified office worker with an unrelated historical offense.
The important consideration is the relationship between the information available to the employer, the employee’s duties, and the risk that later materialized.
3. The Harm Was Reasonably Foreseeable
Foreseeability concerns whether the employee’s known or reasonably discoverable unfitness created a recognizable risk of the type of harm that occurred.
The law does not generally require an employer to predict every possible act of misconduct. A negligent hiring claim examines whether reasonable care could have identified a relevant danger before employment began.
For example, serious warning signs about unsafe driving are more directly connected to operating a delivery vehicle than to performing a position without driving responsibilities.
4. The Hiring Decision Contributed to Actual Harm
A negligent hiring claim requires a legally sufficient connection between the employer’s negligence and the resulting injury.
The injured party generally must establish actual harm and causation. A concern that an employee could potentially cause harm, without the necessary injury and causal relationship, does not by itself establish a completed negligent hiring claim.
The employer’s failure to use reasonable care must have contributed to the harm in a manner recognized by the applicable law.
What Hiring Practices Can Create Negligent Hiring Risk?
Negligent hiring practices arise when employers overlook information or omit reasonable steps that are relevant to the risks associated with a position.
The following situations can create potential exposure.
Failing to Verify Required Qualifications
Employers may expose others to harm when they hire employees without checking licenses, certifications, or other qualifications required to perform safety-sensitive work.
For example, a company hiring a driver should verify the driving credentials required for the position. Employers recruiting professionals for regulated occupations may also need to confirm applicable licenses or authorizations.
An accurate job description establishes the duties and qualifications that the hiring team needs to evaluate.
Ignoring Relevant Warning Signs
A hiring manager may learn about conduct directly related to the risks of a position but fail to investigate the information appropriately.
An employer hiring a worker for a position involving physical security, for example, may need to evaluate credible, job-related information about prior violent misconduct.
The relevance, reliability, timing, and legal availability of the information matter. Employers should not treat unverified allegations as established facts.
Skipping Reasonable Role-Specific Screening
A company may fail to conduct an investigation that is reasonable for the responsibilities and risks of the job.
Appropriate background screening can include checking required credentials, relevant employment information, driving records, or legally permissible criminal history.
The scope depends on the position and applicable legal requirements. Not every role requires the same background information.
Disregarding Material Inconsistencies
Employers may need to investigate significant inconsistencies involving qualifications that affect an applicant’s ability to perform the job safely.
For example, a candidate who claims to hold a required professional license may present information that conflicts with the relevant licensing record.
The hiring team should resolve material discrepancies using reliable sources and lawful verification procedures before assigning duties that require the credential.
How Can Employers Reduce Negligent Hiring Risk?
Employers can reduce negligent hiring risks by defining job-related requirements, conducting appropriate screening, evaluating candidates consistently, and documenting decisions.
1. Identify the Risks Associated With the Position
Start with the responsibilities of the job.
Define the qualifications the employee needs, the people or property the position affects, and the decisions the employee will make.
A customer support representative, financial administrator, and delivery driver perform different work and present different operational risks.
Screening requirements should reflect these differences.
2. Conduct Appropriate Candidate Pre-Screening
Use candidate pre-screening to evaluate required experience, qualifications, professional skills, and other job-related conditions.
Verify information that materially affects the candidate’s ability to perform the position.
Employers should distinguish between required qualifications and preferences. A missing preferred credential does not necessarily establish that an applicant is unfit for the job.
3. Verify Relevant Background Information
Conduct background checks and reference verification when appropriate for the position and permitted by applicable law.
For positions requiring professional licenses, verify the current status with the issuing authority. For driving positions, employers may need to review relevant driving credentials and records.
Employers should assess the reliability of the information and allow candidates to address material discrepancies as required by law.
4. Use Consistent, Job-Related Assessments
Assess candidates against established requirements rather than subjective assumptions.
Structured interviews use predetermined questions and consistent evaluation criteria to compare applicants’ qualifications and relevant experience.
Employers can combine interviews with appropriate work samples, credential verification, and other legally permissible selection methods.
5. Document Hiring Decisions and Follow Applicable Laws
Maintain appropriate records of job requirements, verification steps, relevant findings, and hiring decisions.
Documentation can help establish what the employer reviewed and why a candidate met the requirements of the position. Record retention and access should comply with applicable privacy and employment laws.
A consistent hiring process makes it easier to apply screening standards across candidates and identify missing verification steps.
These precautions can help employers make informed decisions, but no screening procedure guarantees that an employee will never cause harm or that an employer cannot face a legal claim.
What Laws Apply to Employee Background Checks?
Employers conducting background checks in the United States must consider federal employment laws, the Fair Credit Reporting Act, and applicable state or local requirements.
Screening practices must address both reasonable hiring precautions and applicants’ legal rights.
Fair Credit Reporting Act (FCRA)
The Fair Credit Reporting Act regulates the use of employment background reports obtained from consumer reporting agencies.
According to the Federal Trade Commission’s guidance on using consumer reports, employers generally must provide a separate written disclosure and obtain written authorization before procuring an employment consumer report.
When an employer intends to take adverse employment action based on such a report, the FCRA also requires specified steps before and after the decision. These include providing the applicant with a copy of the report and a summary of rights before taking the adverse action.
These requirements apply to covered third-party consumer reports. They should not be interpreted as identical rules for every form of employer-conducted verification.
Employment Discrimination Laws
Employers must apply background information in a manner consistent with federal employment discrimination laws.
The Equal Employment Opportunity Commission’s background-check guidance explains that employers cannot use screening practices to discriminate unlawfully based on protected characteristics.
An employer should evaluate criminal history in relation to actual job requirements rather than assuming every criminal record creates an unacceptable employment risk.
Relevant considerations can include the nature and seriousness of an offense, the time that has passed, and the responsibilities of the position.
These considerations also matter in second-chance hiring, which involves providing employment opportunities to candidates with criminal records.
State and Local Employment Laws
State and local laws may impose additional requirements concerning background checks, criminal-history inquiries, privacy, and the timing of screening.
Some jurisdictions limit when employers can ask about criminal history. Certain regulated occupations may also have specific screening or eligibility requirements.
Employers should verify the rules that apply to their locations, positions, and employment arrangements before implementing screening policies.
Negligent Hiring vs. Negligent Retention and Supervision
Negligent hiring, negligent retention, and negligent supervision concern different employer decisions, although legal claims can overlap.
| Legal concept | Employer conduct being evaluated | Example |
|---|---|---|
| Negligent hiring | Selecting an employee despite a relevant risk the employer knew or should have discovered | Hiring an unqualified driver without checking a required license |
| Negligent retention | Continuing to employ or assign someone after learning of a relevant risk | Keeping an employee in a dangerous assignment after credible, serious misconduct becomes known |
| Negligent supervision | Failing to exercise reasonable oversight when an employee’s conduct presents a foreseeable risk | Ignoring known safety violations by an employee performing hazardous work |
Negligent hiring focuses on the selection decision. Negligent retention concerns the employer’s decision to continue the employment or assignment after relevant risks emerge. Negligent supervision examines the employer’s oversight.
These theories involve the employer’s own alleged negligence. They differ from vicarious liability, which can make an employer responsible for certain acts of employees committed within the scope of employment without requiring proof that the employer negligently selected the worker.
The precise elements and available claims depend on applicable law.
Frequently Asked Questions About Negligent Hiring
What does negligent hiring mean in HR?
Negligent hiring means an employer fails to use reasonable care when selecting an employee whose unfitness creates a foreseeable risk of harm, and that hiring decision contributes to an injury. In HR, the concept concerns the legal consequences of inadequate or unreasonable candidate evaluation.
Can an employer be sued for negligent hiring?
An employer can face a negligent hiring lawsuit when an injured person alleges that the employer knew or should have known about a relevant risk associated with an employee and that the hiring decision contributed to the injury. Filing a lawsuit does not establish liability. The claimant must prove the elements required by applicable law.
Does a criminal record automatically establish negligent hiring?
A criminal record does not automatically establish negligent hiring. The significance of criminal history depends on its relevance to the position, the nature and timing of the conduct, the circumstances of the hiring decision, and applicable law. Employers must also comply with employment discrimination and fair-chance hiring requirements.
Does every employer need to conduct background checks?
No single screening procedure applies to every job in the United States. Required checks depend on the position, jurisdiction, industry, and applicable regulations. Employers should use reasonable, job-related verification and follow laws governing the collection and use of background information.
Is a bad hiring decision the same as negligent hiring?
A bad hiring decision does not necessarily constitute negligent hiring. Hiring an employee who later performs poorly or violates workplace rules does not automatically establish employer negligence. A negligent hiring claim requires legally relevant evidence of unreasonable selection, a foreseeable risk, harm, and causation.
Can negligent hiring apply to remote employees?
Negligent hiring can involve remote employees when the applicable law recognizes the claim and the employer’s hiring decision creates a legally relevant risk of harm. Remote work does not automatically eliminate employer responsibilities. The nature of the duties, the alleged injury, the employment relationship, and the governing jurisdiction determine the analysis.
This article provides general information about negligent hiring in the United States. It is not legal advice. Employers should consult qualified employment counsel about specific incidents, screening procedures, and jurisdictional requirements.