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Can I be Sued Over an Employee's Criminal Record?

By Stephanie Rabiner, Esq. | Last updated on

If you've seen the recent headlines about Michael Hershey--a car salesman charged with murder for ending a test drive with a flipped car and a dead customer--then you've probably been wondering about employer liability for employees with criminal records.

Hershey had a long history of reckless driving, DUIs, and harassment, making him ill-suited to conduct test drives, reports The Inquirer. The family is now suing the car dealership for its failure to disclose Hershey's driving record and for permitting him to get behind the wheel.

Employer liability is most often sought in cases where an employee committed some negligent act while on duty. This doctrine is known as respondeat superior. Lesser known on the employer liability spectrum is negligent hiring, which instead of focusing on an employee, focuses on the employer's choice to hire that employee.

The doctrine of negligent hiring requires employers to exercise reasonable care when making hiring decisions. In other words, employers must not hire individuals who, via employment, may pose a threat to others.

Most commonly, a negligent hiring action results when, through employment, an employee with a criminal record gains access to a victim. The most basic example is of a convicted burglar who steals property during an in-home visit, or who takes a key to do so later. Other examples involve child molesters permitted to work with children, or rapists who are allowed into a woman's home.

The only way to protect yourself from employer liability on the basis of negligent hiring is to conduct a criminal background check on every job applicant. At that point, you should know whether or not that person poses a potential threat to your unique customer base.

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