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What is negligent hiring?
Negligent hiring is a tort claim — a civil lawsuit — alleging that an employer failed to exercise reasonable care in selecting an employee for a position, and that failure caused harm to a third party. The theory emerged from the common law duty of employers to provide a reasonably safe workplace, and has expanded over decades to cover a broad range of hiring contexts.
The PBSA's industry documentation traces the legal history: negligent hiring claims began appearing in courts nearly a century ago, became increasingly prevalent after the 1970s, and today represent one of the most significant employer liability exposures in workforce management. Courts have found employers liable when:
- An employee with a documented history of violence harmed a coworker or customer
- An employee with a history of theft stole from a client
- An employee with a prior DUI conviction caused an accident while driving for work
- An employee with a history of sexual misconduct abused a patient, student, or client
Negligent hiring vs. retention vs. supervision
These theories are related but distinct. Employers need to understand all of them because they apply at different points in the employment relationship.
| Theory | When it applies | What the plaintiff must show |
|---|---|---|
| Negligent hiring | Before or at the time of hire | Employer knew or should have known of the employee's dangerous propensity before hiring |
| Negligent retention | During employment, after a warning sign emerges | Employer continued to employ someone after learning of — or having reason to discover — a risk |
| Negligent supervision | During employment | Employer failed to adequately supervise an employee whose conduct created a foreseeable risk |
| Negligent entrustment | When an employee is given a tool, vehicle, or authority | Employer gave an employee access to something dangerous when they had reason to know that was risky |
A single incident can generate claims under multiple theories simultaneously. An employer who hires without a background check, receives a complaint about misconduct, fails to investigate, and continues to give the employee unsupervised access to clients is potentially liable under all four.
What does a plaintiff need to prove in a negligent hiring case?
While elements vary by state, most negligent hiring claims require a plaintiff to establish:
- Due to criminal history, prior misconduct, lack of required qualifications, or other characteristics relevant to the role.
- Either through actual knowledge or through the information a reasonable background check would have revealed.
- Given the nature of the position, the level of public access involved, and the vulnerability of the people the employee would interact with.
- There must be a causal connection between the undisclosed risk and the specific harm that occurred.
- Physical injury, financial loss, emotional distress, or other compensable harm.
The most litigated element is typically the second: what should the employer have known? Courts assess this based on what a reasonable pre-employment background check would have revealed. If a county criminal search in the jurisdiction where the employee previously lived would have returned a relevant conviction — and the employer didn't run that search — the employer had constructive knowledge of the risk.
What makes a position high risk for negligent hiring purposes?
Not every role carries the same exposure. Courts apply a proportionality principle: the more vulnerable the population the employee interacts with and the more unsupervised that access is, the more rigorous the screening obligation.
- Roles with direct, unsupervised access to children (teachers, coaches, childcare workers, youth program staff)
- Healthcare workers with access to patients (nurses, home health aides, clinical staff)
- Employees who enter customers' homes (contractors, service technicians, home delivery staff)
- Drivers operating company vehicles or transporting others
- Employees with access to financial accounts, sensitive data, or client funds
- Security personnel
- Managers and supervisors with authority over others
- Employees handling cash or valuables
- Staff with access to controlled substances or regulated materials
- Supervised, limited-access positions with no vulnerable population contact
The principle: the more trust the role requires, the more defensible screening must be. A school that hires a teacher without running a county-level criminal search in the teacher's prior state of residence has a very difficult negligent hiring defense. A warehouse employer that hires a supervised floor worker without a comprehensive background check has a much stronger one.
The Honest Background Screening Comparison Report
Ten industry categories. 23 vendors evaluated under the same rubric — including which ones actually run county-level searches and which rely on database pulls. Including the one category where Bchex is Not Rated, and who's built for that buyer instead.
- ✓County-level coverage compared, vendor by vendor
- ✓The 5 pressure-test questions, with example answers and dodges
- ✓The red-flags checklist for spotting a vendor that's drifting
- ✓Industry-fit grid: 10 categories × 23 vendors
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How a compliant background check defends against negligent hiring claims
A documented, thorough, consistently applied background check program is the primary defense against negligent hiring liability. It demonstrates that the employer exercised reasonable care — that they looked, that what they looked for was appropriate to the role, and that what they found didn't reveal a disqualifying risk.
A check that includes an address history trace, national criminal database search, county criminal searches in relevant jurisdictions, and a federal criminal search covers the primary sources of criminal history that courts expect employers to examine for professional roles. For roles with driving, sex offender registry and MVR searches should be added. For roles with vulnerable populations, abuse registry checks and continuous monitoring enrollment are increasingly the expected standard.
National database searches are useful but incomplete. Courts have found employers liable when a county-level conviction in a prior jurisdiction would have been discovered by a direct courthouse search — but the employer only ran a database pull. See County Criminal Search vs. National Database for the full explanation.
A policy applied selectively — running thorough checks on some candidates but not others — undermines the legal defense and creates discrimination exposure. The program must apply uniformly to every candidate for the same role type.
Even a thorough check doesn't provide legal protection if the process violated the Fair Credit Reporting Act. Written consent, proper disclosure, and compliant adverse action procedures must be followed. See our FCRA compliance guide for the full process.
Every check, every result, every adjudication decision, and every adverse action notice should be documented and retained. When litigation occurs years after a hire, documentation is what distinguishes "we exercised reasonable care" from "we have no evidence we did anything."
Negligent retention: the post-hire risk
A clean background check at hire protects against negligent hiring claims — but it provides no protection against negligent retention if the employee's circumstances change after onboarding and the employer fails to detect it.
Negligent retention applies when:
- An employee has a new arrest or conviction that is relevant to their role
- A complaint or incident report is filed and the employer fails to act
- A performance issue reveals a pattern that should have triggered a review
- A role change gives an employee new access without updated screening
The legal standard for negligent retention is similar: did the employer know, or should the employer have known, about the risk? Courts have held employers liable when monitoring tools existed and weren't used — meaning continuous monitoring programs are increasingly relevant to negligent retention defense, not just as a best practice but as evidence of reasonable care.
Chex365 continuous monitoring watches active employees in real time, alerting administrators when new criminal activity appears — closing the gap between the hire-date check and the next scheduled rescreen. For a full explanation of how continuous monitoring works alongside periodic rescreening, see What Is Continuous Monitoring?
How Bchex supports negligent hiring defense
Documented, county-level, FCRA-compliant screening — the foundation of a defensible posture.
Bchex Core Screening provides the documented, FCRA-compliant, county-level background check program that forms the foundation of a defensible negligent hiring posture. Every check includes an address history trace to map residential history, county criminal searches in the relevant jurisdictions, and federal criminal records — with adjudication support through Insight+ to evaluate flagged results against consistent, documented criteria.
For post-hire risk, Chex365 extends that coverage through continuous monitoring — providing the documented, ongoing oversight that courts increasingly expect from employers in high-access roles.
Bchex is PBSA-accredited, meaning its screening processes have been independently audited against the industry's highest standard — which is exactly the kind of documented due diligence that matters in litigation.
Related: What Is a Background Check? · County Criminal Search vs. National Database · Background Check Compliance Explained (FCRA Guide) · What Is Continuous Monitoring? · How to Screen Volunteers Safely
FAQs: negligent hiring
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The bottom line
Negligent hiring liability is not a theoretical risk — it is an active area of litigation with documented multi-million dollar verdicts. The defense is not complicated: exercise reasonable care, document it, apply it consistently, and extend it beyond the hire date with ongoing monitoring for roles that warrant it. The employers who face the most exposure are not the ones who screened someone and missed something — they're the ones who didn't screen at all, or screened inadequately for the risk level of the role.
Talk to Bchex about your background check program
PBSA-accredited, FCRA-compliant, with county-level coverage and documented adjudication on every order.
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