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Benjamin Pyle

Publication Date

3-15-2026

Abstract

This Article tackles a difficult legal and policy challenge— reducing the impact of criminal records on job applicants’ chances in a manner that does not spur more discrimination—by looking at how another area of law, tort liability, impacts employers’ decision-making. It uses theoretical and empirical methods to study the most common reason employers report being reluctant to hire workers with a criminal record: legal liability generated by the tort of negligent hiring. While the purpose of the tort is ostensibly to protect and make whole those harmed when an employee misbehaves in a foreseeable manner, I show that, in practice, the tort generates additional criminal behavior and worsens employment outcomes.

I first provide a survey of the current doctrine across the states and trace the origins of the tort through the common law. Using a difference-indifference strategy, I examine state legislation clarifying the negligent hiring standard and reducing the likelihood that an employer will be found liable. Using large survey and administrative data, I found that states that changed their negligent hiring law saw employment for people with criminal records increase by 3 to 5 percentage points (up 5% to 9%), and reincarceration for a new criminal offense fall by 2 percentage points (down 10%).

Throughout the Article, these findings are contextualized with related policies by considering the effects of legislation restricting the timing of inquiries into criminal histories (Ban-the-Box legislation) and the use of hiring credits (the Work Opportunity Tax Credit).

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