NOTE: The COSHRM has made available an 8-page booklet titled “Interviewing & Hiring Applicants with a Criminal Record”. Following is the first installment of extracts from that publication.
One of the major reasons employers give for not hiring an applicant with a criminal record is their fear of a negligent hiring lawsuit. Negligent hiring is based on the principle that an employer may be liable for harm caused by an employee’s acts, even If the act is not in the scope of employment. However, the reality is that most employers are unlikely to ever face a negligent hiring lawsuit.
The members of the Colorado Legislature worked to clarify negligent hiring concerns in 2010 when they unanimously passed a 1aw to address employers’ concerns about negligent hiring lawsuits. This statute explains that in the event of a civil action against an employer for an employee’s actions, an employee’s criminal background could not be introduced as evidence unless there was a direct relationship between the criminal history and the underlying facts of the claim.
In other words, an employee’s background could not be used against an employer in a civil claim if the employer had considered the nature and gravity of the employee’s offense and its relevance to the employee’s position in the company.
Since liability is usually based on whether the employer could have foreseen the employee’s actions, when an employer considers the nature of the crime, the time elapsed, and the nature of the job, the employer is making a reasonable effort to protect his or her business in the unlikely event of a negligent hiring lawsuit.
Employers should be aware that most successful negative hiring lawsuits involve employees with unsupervised access to vulnerable populations such as children or the elderly.