Do Criminal Background Checks Promote Public Health, and Should Courts Care?

The issue of whether employers have a duty under negligent hiring doctrine to run criminal background checks (CBCs) raises two broader questions that are relevant to public health law. First, what role should scientific evidence play in determining whether a harm is foreseeable? There are reasons to question the assumption that employees with criminal histories are at greater risk of engaging in misconduct at work, yet few courts have required scientific evidence to support this assumption. Second, even if employees with criminal histories are more likely to engage in criminal misconduct at work, should courts also consider the broader public health implications of not employing prior offenders, such as increased recidivism among the population at large? Courts in several states have held that employers who are not statutorily required to run CBCs have no duty to do so, suggesting that they believe the legislature should determine how to balance the risk of increased workplace crime against the risk of increased crime in the population at large. Other courts, however, have not taken into account the broader public health implications of inhibiting prior offenders from finding employment. This presentation will review negligent hiring laws across the 50 states and describe how courts have responded to these two questions. It will conclude by offering recommendations about how public health research should inform negligent hiring law.