Smart Solutions

Negligent Hiring Concerns

Work Opportunity Tax Credits

Federal Bonding Program

State Tax Credits
Negligent Hiring Concerns
One reason employers often give for refusing to hire individuals with a criminal record is the fear that they will incur liability if they hire an person with a conviction record who later commits a new crime. This is known as negligent hiring.

While state standards differ, the key to determining liability is usually whether the employer could have foreseen the crime: specifically, whether the employee had a history or propensity for harmful behavior and, most importantly, whether the employer knew or should have known of the employee’s propensities. Ordinarily, an employer’s reasonable efforts to check and consider a prospective employee’s background will generally satisfy the legal requirements and eliminate the risk of liability on the employer’s part.

Federal law discourages employers from having a blanket policy of denying employment to individuals with criminal histories. Guidance from the Equal Employment Opportunity Commission requires employers to make individualized assessments about the appropriateness of hiring a particular applicant (Equal Employment Opportunity Commission, Notice No. N-915, Policy Statement on Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, [February 4, 1987]). Employers must give full consideration to certain factors including:
  • The nature and gravity of the offense(s);
  • The time that has passed since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.
There are resources available to employers who hire individuals with criminal records that can be used as a way for employers to protect themselves. The Federal Bonding Program is available to employers who have concerns about hiring qualified but "at-risk" job applicants. The U.S. Department of Labor issues Fidelity Bonds, which are business insurance policies that protect employers in case of theft, forgery, larceny or embezzlement of money or property by an employee who is covered by the bond. The bond coverage is usually up to $5,000 with no deductible amount of liability for the employer. Higher amounts of coverage may be allowed if justified. The bond does not cover liability due to poor work performance, job injuries, or work accidents.

Employers can partner with local community-based organizations that serve as a third party intermediary. These agencies offer support services to the employer by providing:
  • cost savings by lowering the employer’s recruitment costs by matching qualified applicants to the employer’s available positions;
  • pre-screening and pre-training that suits the employer’s needs; and
  • retention services to the recruited employee.
Examples of successful partnerships are available in Model Practices.