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The Exception as the Rule: Negligent Hiring Liability, Structured Uncertainty, and the Rise of Criminal Background Checks in the United States

Published online by Cambridge University Press:  05 August 2021

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Abstract

The threat of negligent hiring lawsuits is thought to play an important role in the widespread use of criminal background checks among US employers. This article examines the construction of negligent hiring within the trade literature of the human resources (HR) field using a qualitative content analysis. While courts tend to view criminal record checks as unnecessary for occupations that do not carry foreseeable risks, the article finds that the HR field has broadly endorsed criminal record checks as the default practice for screening job candidates. The article argues that this divergence stems from the structured uncertainty of compliance under the common law tort of negligent hiring, which shapes organizational behavior in ways that defy the substantive clarity of relevant case law.

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Law & Social Inquiry , Volume 47 , Issue 1 , February 2022 , pp. 132 - 161
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© The Author(s), 2021. Published by Cambridge University Press on behalf of American Bar Foundation

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Footnotes

The article benefited from the helpful comments of the Law & Social Inquiry reviewers as well as the valuable feedback on earlier versions from Robin Stryker, Christopher Uggen, Spencer Headworth, and Phil Goodman. Makayla Copeland provided outstanding research assistance.

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