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Vol. 3 No. 3

 

DON’T WORRY ABOUT THE CHECK–WHY THE FOURTH CIRCUIT’S OPINION IN BLAIR V. DEFENDER SERVICES, INC. SHOULD NOT DETER NORTH CAROLINA EMPLOYEES FROM EMBRACING FORTHCOMING “BAN THE BOX” LEGISLATION

By: Isaac Sturgill

The article addresses issues surrounding negligent hiring of employees and workplace violence.  “Ban the Box” is a national grassroots movement focused on reforming government hiring policies to eliminate questions about job applicants’ criminal histories from public-employment applications.  With the increased possibility of North Carolina legislation restricting employers’ ability to conduct criminal background checks on prospective employees, many are concerned how the U.S. Court of Appeals for the Fourth Circuit would rule with respect to an employer’s duty to reasonably investigate a prospective employee’s background.

However, the author takes a closer look at the differences between Virginia case law, which was at issue in Blair v. Defender Services, Inc., and North Carolina case law, which would affect employers in North Carolina.  In his analysis, he points out that North Carolina courts tend to focus on the scope of the employer’s duty in negligent-hiring actions, while Virginia courts tend to focus primarily on the extent to which the injury was foreseeable.  The author contends that this difference in North Carolina and Virginia case law should reassure North Carolina employers that the Fourth Circuit, in applying North Carolina law, would not require employers to conduct a criminal background check in order to protect themselves from negligent-hiring liability, so long as they took other steps to reasonably investigate their employee’s background.