The negligent theory is premised on the unreasonable conduct of an employer in placing a person with certain known propensities for criminal or tortuous behavior in an employment position where the individual poses a threat to others. The negligent hiring theory of liability has been recognized in a number of states, including Texas. Basically, it occurs when the employer fails to properly screen the employee, resulting in the hiring of an individual that has a history of violent or criminal acts. The doctrine addresses and “punishes” the employer for creating a risk by exposing its employees, customers and/or public to a potentially dangerous individual.
Most negligent hiring lawsuits arise after an employer’s worker harms or injures an individual while acting within the course and scope of employment, and that person sues for the harm or injury. Typically a lawsuit will maintain that if the employer had conducted an appropriate investigation into the employee’s background, information would have been discovered that indicated the employee had a potentially violent or abusive nature. As a result, the employer becomes negligent for hiring the individual and placing him/her in a position where he/she would pose a threat to others.
“EEOC and the courts generally recognize that some background material may have some bearing on the applicant’s suitability for the job. In the most obvious instance, for example, you wouldn’t be expected to hire a convicted embezzler to handle cash. There are other situations that apply — contact with customers, driving company vehicles, dealing with minors, etc. You’re on safer ground if you can show those correlations between background checks and suitability.” HR Morning. Recruiting: EEOC Warns About Background Checks. January 6, 2010.
EEOC statistical evidence shows that more minorities than non-minorities have had criminal history (or financial problems) in the past. Taking adverse job action based upon such factors has a disproportionate and unfair impact. The EEOC expects employers to do an individualized job-relatedness determination prior to turning someone down for a job. Always remember that the EEOC’s position is that an arrest per se cannot be considered by employers, because it does not prove guilt. The EEOC agrees that conviction records “could be cause for rejection if their number, nature and proximity would cause the applicant to be unsuitable for the position.”
In the decision-making process the employer should consider the following:
- When was the offense?
- What was the offense?
- What was the punishment?
- What affect on the position?
“In some industries, recruiters are using criminal and credit screening as a quick and easy method for culling the ever-larger pile of applications. But this growing reliance on screening is on a collision course with new legislative restrictions, legal challenges and mounting evidence that such results are poor predictors of behavior and performance.” Workforce Management. Recruiters’ Use of Criminal and Credit Checks Colliding with Legislative Constraints. October 20, 2009.
A small number of states have laws limiting the use of conviction records in the employment context. At this time, Texas is not one of them.
Most negligent hiring lawsuits arise after an employer’s worker harms or injures an individual while acting within the course and scope of employment, and that person sues for the harm or injury. Typically a lawsuit will maintain that if the employer had conducted an appropriate investigation into the employee’s background, information would have been discovered that indicated the employee had a potentially violent or abusive nature. As a result, the employer becomes negligent for hiring the individual and placing him/her in a position where he/she would pose a threat to others.
“EEOC and the courts generally recognize that some background material may have some bearing on the applicant’s suitability for the job. In the most obvious instance, for example, you wouldn’t be expected to hire a convicted embezzler to handle cash. There are other situations that apply — contact with customers, driving company vehicles, dealing with minors, etc. You’re on safer ground if you can show those correlations between background checks and suitability.” HR Morning. Recruiting: EEOC Warns About Background Checks. January 6, 2010.
EEOC statistical evidence shows that more minorities than non-minorities have had criminal history (or financial problems) in the past. Taking adverse job action based upon such factors has a disproportionate and unfair impact. The EEOC expects employers to do an individualized job-relatedness determination prior to turning someone down for a job. Always remember that the EEOC’s position is that an arrest per se cannot be considered by employers, because it does not prove guilt. The EEOC agrees that conviction records “could be cause for rejection if their number, nature and proximity would cause the applicant to be unsuitable for the position.”
In the decision-making process the employer should consider the following:
- When was the offense?
- What was the offense?
- What was the punishment?
- What affect on the position?
“In some industries, recruiters are using criminal and credit screening as a quick and easy method for culling the ever-larger pile of applications. But this growing reliance on screening is on a collision course with new legislative restrictions, legal challenges and mounting evidence that such results are poor predictors of behavior and performance.” Workforce Management. Recruiters’ Use of Criminal and Credit Checks Colliding with Legislative Constraints. October 20, 2009.
A small number of states have laws limiting the use of conviction records in the employment context. At this time, Texas is not one of them.
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