Minimizing the Risks of Negligent Hiring, Pre- and Post-Hire

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There has been no shortage of public cases in recent years in which employing organizations have neglected to check the backgrounds of employees prior to hire and have suffered damaging consequences because of it. People get hurt, lawsuits are filed and companies get hit hard with bad press.

If you’re reading this article, chances are, you are familiar with the benefits of pre-employment screening. But what is being done to learn of crimes committed by current employees since the time the pre-employment check was conducted – potential strikes on their record that would now make them “unsuited” for the position? Is it possible that the field sales representative with a stellar pre-employment MVR has received two DUIs and been convicted for possession of cocaine in the two years since she started working for you?

Organizations should be aware of the potential risks of “negligent retention,” which could make the employer directly liable to a third party for negligently retaining an employee. Some courts have recognized the tort of negligent retention when an employer knew or should have known about an employee’s dangerous propensities, yet continued employing the individual.

To be conservative in interpreting the Negligent Hiring doctrine and to help protect against the possibility of negative retention, some organizations employ post-employment screening programs which re-check the backgrounds of current employees. Conducting post-employment background checks is a best practice that may help reduce the risks associated with negligent hiring and retention claims. More importantly, post-employment background checks can help organizations maintain a safer and more secure workplace.

If your firm is concerned with the possibility of retaining employees that once met, but may not meet your organization’s employment screening standards today, then adding a post-employment element to your screening program may be something worth looking into. It is important to note that applicable and compliant post-hire consent must be obtained in order to run post-hire checks.

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HireRight is a leading provider of on-demand employment background checks, drug and health screening, and electronic Form I-9 and E-Verify solutions that help employers automate, manage and control background screening and related programs.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.