Yes, if a state recognizes the torts of negligent hiring or negligent retention. Negligent hiring means that an employer negligently hired an employee that it knew or should have known through reasonable diligence present a risk to the public. For example, let’s say that a trucking company hires a new driver who then drives drunk and injures some motorists. If a reasonable investigation by the employer would have revealed past convictions for drunk driving, the injured motorists would have a good case against the trucking company for negligent hiring.

Similarly, let’s say that a private security firm receives a complaint that one of its officers sexually harassed a woman at a job site. The company fails to properly discipline this employee. If a few months later, this same employee allegedly sexually assaults another person, then the security firm may be liable for negligent retention. The theory behind negligent retention is that the employer should have known that this particular employee presented a risk to the public and should have terminated his employment earlier.

A company could also face liability for negligence if it fails to conduct any criminal background check at all, particularly if the company claims that it does conduct such background checks. For example, a Washington appeals court in 2009 refused to dismiss a claim against a security services dealer after one of its employees raped a 14- year-old girl whose family was a customer. The appeals court focused on the fact that that the company—which contracted with the larger security company that it conducted background checks on its employees—failed to perform a criminal background check on its employee, who had numerous convictions.