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Study: Liability in hiring people with conviction records is lower than believed

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As ban-the-box laws proliferate and interest in hiring people with conviction records grows, employers may be concerned about negligent hiring liability, or a hire that could cause legal repercussions for the company in the future — but a study released July 27 by Legal Action Center noted that these concerns may be overblown.

In the study, researchers examined “every negligent hiring decision disclosed by a computer-assisted search since the cause of action was first recognized in 1974 up until 2022.” They discovered that liability is far lower than expected by employers and exists largely in specific jobs with defined risks. Those risks include: 

  • Contact with vulnerable populations
  • Driving or operation of a motor vehicle
  • Access to financial assets
  • Access to homes
  • Use of force or firearms
  • Alcohol

“For jobs that do not involve any of these risks, such as the vast majority of office and factory jobs, negligent hiring liability is virtually non-existent,” according to the study’s announcement.

Employers can also mitigate risks by having a solid hiring process in place, including use of a qualified consumer reporting agency for background checks. LAC also recommended employers conduct individualized assessments for each role and applicant. Doing so could help open up a wider talent pool amid a labor shortage, LAC said.

“Conviction records alone do not provide employers with the complete picture of what someone can offer a company. And as our findings show, when these records are relevant, employers can take simple measures to minimize their exposure to risk,” Lewis Maltby, president and CEO of National Workrights Institute and principal author of the report, said in a statement. “The urgency of altering hiring practices and eliminating the stigma associated with a conviction record in the process grows every day as mass incarceration persists and the national labor shortage continues to strain our economy.”

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