In a recent study by the Legal Action Center and National Workrights Institute, advocates for second-chance hiring argue that the fear of negligent hiring, often cited as a deterrent for hiring individuals with criminal histories, is largely overblown.
Negligent hiring is a civil (non-criminal) cause of action in which an employer is found liable because they hired someone they knew, or should have known, was likely to harm others in the position for which they were hired.
The comprehensive report analyzed negligent hiring decisions over a 48-year period, from 1974 to 2022, revealing that negligent hiring liability is far less common than perceived, with approximately 47 cases per year in which employers incurred liability for negligent hiring.
The study highlights that 97 percent of cases where employers were found guilty of negligent hiring involved roles with specific risks, such as contact with vulnerable populations, operation of a motor vehicle, access to financial assets or homes, use of force, use of firearms, or access to alcohol.
“Employers can safeguard against negligent hiring claims by exercising due diligence and reasonable care in the hiring process,” says Andree Laney, Legal Advisor with Employers Association of New Jersey, “including conducting thorough background checks.”
In addition to background checks, the study recommends employers document job responsibilities to identify inherently risky positions and conduct individualized assessments for candidates with criminal histories.
According to the study, in the few jobs where negligent hiring is a risk, employers can generally give applicants with records a fair chance by conducting and individualized assessment that considers whether the prior offense is related to the job in question, how much time has passed since the offense and evidence of rehabilitation.
“Informed employers can hire qualified candidates with criminal records without risking negligent hiring liability,” emphasized Lewis Maltby, president of National Workrights Institute.
An EANJ membership survey, conducted in November 2023, revealed 80 percent of the 94 employer-respondents screen candidates for conviction records and 60 percent have knowingly hired and/or retained someone with a conviction record.
When asked the greatest concern or fear about hiring an individual with a conviction record, 51 percent indicated their fear was the individual may endanger employees or clients; 32 percent were concerned of the likelihood the individual would commit the same crime again; and 23 percent of respondents indicated they had no particular concerns about hiring individuals with a conviction record.
“As we navigate these findings, it becomes evident that the perspectives of employers are evolving, and the fear associated with hiring individuals with criminal records may be rooted more in perception than in the actual risk of negligent hiring,” said Amy Vazquez, Vice President of Employers Association of New Jersey.
Join Andree Laney and Lewis Maltby for a comprehensive discussion on best practices to help employers make informed decisions and navigate the complexities of hiring individuals with prior convictions – details and registration.