The Exception as the Rule: Negligent Hiring Liability, Structured Uncertainty, and the Rise of Criminal Background Checks in the United States

Abstract

The threat of negligent hiring lawsuits is thought to play an important role in the widespread use of criminal background checks among US employers. This article examines the construction of negligent hiring within the trade literature of the human resources (HR) field using a qualitative content analysis. While courts tend to view criminal record checks as unnecessary for occupations that do not carry foreseeable risks, the article finds that the HR field has broadly endorsed criminal record checks as the default practice for screening job candidates. The article argues that this divergence stems from the structured uncertainty of compliance under the common law tort of negligent hiring, which shapes organizational behavior in ways that defy the substantive clarity of relevant case law.

Changing public attitudes toward the employment of formerly incarcerated people: The role of “human resources social advocacy”

“…The reasons why employers are often reluctant to hire formerly incarcerated people are manifold. Some scholars suggest that a combination of normative (moral), cognitive (belief‐based), and regulative (legal) forces converge to discourage firms from providing employment opportunities to people who have previously been incarcerated (Burns et al., 2017; McElhatten, 2022). Finn (2021) argues that many formerly incarcerated people experience difficulties in finding unsubsidized, well‐paid, permanent jobs because so many employers refuse to hire individuals with criminal records, irrespective of the nature of the offence or its circumstances.…”

“…One interpretation of regulative interventions is that they are necessary precisely because the desired behavior (the fair hiring of formerly incarcerated people) is so difficult to socialize. Moreover, some scholars suggest that the legal systems of liberal individualist societies have been largely ineffectual in compelling employers to treat fairly those with criminal records—the law generally upholds the right of employers to hire whomever they see fit (Naylor et al., 2008; Solomon, 2015), and even acts as a deterrent (McElhatten, 2022). This leaves normative social change as perhaps the only viable pathway for advocates of the formerly incarcerated.…”

“…Some scholars have expressly called for community education in order to reduce the stigma experienced by formerly incarcerated people, believing more sympathetic societal attitudes will enable employers to be more open in their hiring practices (Graffam et al., 2004) and could subtly shift the negligent hiring liability (McElhatten, 2022). In other words, there is a normative basis seeking to change public antipathy toward the formerly incarcerated.…”

“…So severe is the situation that, while employment discrimination is prohibited for individuals with legally protected characteristics, formerly incarcerated people are subject to openly discriminatory employment practices (Delgado, 2012; Jacobs, 2015), with many employers making pre‐emptive strikes against them, noting in their job advertisements that “ex‐offenders” are not welcome to apply (Natividad Rodriguez & Emsellem, 2011; Rade et al., 2016). Indeed, employers can even face a negligent hiring liability when they employ formerly incarcerated people in the event that an employee harms a third party through, for example, violence or theft (McElhatten, 2022).…”

The global rise of criminal background checks

“…For example, since the 70s, different public policies have made employers and landlords liable for their clients, employees, or tenants' safety. Aware of them, employers and landlords are expanding their use of CBCs to show that they followed the appropriate screening procedures to avoid potential legal liability in the future (Bushway & Kalra, 2021;McElhattan, 2022;Thacher, 2008). The professionalisation of landlords and recruiters has sped up this process by facilitating the development of collective knowledge and resources for conducting CBCs (Thacher, 2008).…”