Direct Answer
Negligent hiring is a legal doctrine holding that an employer can be liable for harm caused by an employee if the employer knew — or should have known — that the person posed a foreseeable risk, and failed to take reasonable steps to discover that risk before hiring them. It is not about whether the employer intended to hire a dangerous person. It is about whether the employer exercised reasonable care in the hiring process.
Why It Matters
Imagine a company hires a delivery driver without checking their driving record, and that driver causes a serious accident due to a history of reckless driving. Or a healthcare organization hires a caregiver without conducting any reference checks, and the caregiver harms a patient. In both cases, a court could find the employer liable — not for the employee's actions directly, but for failing to exercise the due diligence that would have revealed the risk.
This is not a hypothetical concern. Negligent hiring causes of action have been adopted by nearly every U.S. state (Loafman & Little, 2014), and jury verdicts in these cases can be substantial — one Tenth Circuit case upheld a $15.275 million verdict against a trucking company that failed to adequately screen a driver with prior license suspensions and convictions.
The Science Behind It
The legal standard varies by jurisdiction but follows a common structure. In Texas, the basis is that "the employer has hired an incompetent individual whom the employer knows, or should know, is unfit, thus putting others at a risk of unreasonable harm." In Ohio, "an employer has a duty to prevent foreseeable injury to others by exercising reasonable care to avoid employing an incompetent employee." California focuses on whether the employer knew the employee had "characteristics that pose a risk to third parties" (Loafman & Little, 2014).
From an employment screening perspective, Roberto et al. (2022) noted that "failure to perform [background checks] can leave employers liable for negligent hiring" and that "negligence occurs if the employer failed to engage in due diligence that would flag a potential problem." Over 90% of employers now conduct some form of background check (Roberto et al., 2022), driven in part by this legal exposure.
However, the doctrine creates a tension. Lageson and Stewart (2024) found that employer concerns about negligent hiring liability are often "incongruent with recent court decisions" — suggesting that organizations may overestimate the legal risk and exclude qualified candidates unnecessarily. This is particularly relevant when criminal background checks are used as blunt screening tools rather than as part of a thoughtful, job-related assessment process.
Common Misconceptions
A common misconception is that negligent hiring liability can be fully addressed by running a criminal background check. Background checks are one component of due diligence, but they have significant limitations: Brody et al. (2015) documented that criminal records are often incomplete, not updated in a timely manner, and cannot predict behavior a person has yet to engage in. A more comprehensive approach includes structured reference checks that assess actual workplace behavior — not just the presence or absence of a criminal record.
How This Connects to Better Hiring
Negligent hiring is the legal reason why employment verification alone is not enough. Confirming that someone held a job title does not address whether they pose a foreseeable risk. A structured reference check — which evaluates how a person actually performed and behaved in previous roles — provides the kind of behavioral evidence that satisfies the "reasonable care" standard at the heart of negligent hiring law.