Background Checks: The Evolution — The Liability Question - Credence Screening Enterprise

BACKGROUND CHECKS: THE EVOLUTION

Part 2 – The Liability Question

Last time, we ended on a promise: the story of how one old, specific court case set all of this in motion.

Here it is.

The Apprentice With the Air Hose

In 1908, a young apprentice named Ballard was working at a railroad company in Kentucky, alongside another apprentice — a boy named Hodge.

Hodge had a habit. He liked to fool around with the workshop’s compressed air hose, using it to startle and prank his co-workers. It wasn’t a secret. His supervisor knew about it. He’d been doing it for some time.

One day, the prank went horribly wrong. Hodge used the hose on Ballard, causing injuries so severe that Ballard died as a result.

Ballard’s family took the railroad company to court. And the court didn’t just ask whether Hodge was at fault — it asked something sharper: did the company know Hodge was careless and reckless, and keep him on anyway?

The answer was yes. And the court held the employer liable — not because of what Hodge did in the moment, but because the company had already seen enough to know he was a risk, and chose to do nothing about it.

That case — Ballard’s Administratrix v. Louisville & Nashville Railroad Co., decided in 1908 — is widely regarded as one of the earliest examples of what’s now called negligent hiring and retention. And it introduced a standard that’s still with us today, in one form or another, well over a century later: an employer could be held responsible not just for what an employee did, but for what the employer knew, or should have known, before it happened.

Two Different Kinds of Blame

It’s worth pausing on why this was actually a new idea, because it’s easy to assume employers were always on the hook for their staff’s behaviour. They weren’t — not quite in this way.

There was already a well-established idea, sometimes called vicarious liability, where an employer could be held responsible for something an employee did while doing their job. If a delivery driver crashed a company vehicle while making a delivery, the company could be liable for that — simply because the driver was acting within their role at the time.

Negligent hiring is a different, and in some ways more uncomfortable, idea. It doesn’t ask what the employee did while working. It asks what the employer did — or failed to do — before the employee was ever put in that position. Did they know something concerning, and hire or keep the person anyway?

That’s a much harder standard to defend, because it isn’t really about the employee at all. It’s about the employer’s own judgement.

The Standard Spreads

Over the following decades, courts kept testing how far this idea could reach.

One case that mattered was Mallory v. O’Neil, decided by the Florida Supreme Court in 1954, where a landlord had hired a handyman to live and work in an apartment building. The handyman later shot one of the tenants. The court held that the landlord could be held liable if the allegations were proven at trial — not for the shooting itself, but for putting someone with a known dangerous history in a position of trust around the people who lived there.

That mattered because it pushed the idea beyond the workplace itself. It wasn’t just about protecting fellow employees anymore. It was about anyone the employee might reasonably come into contact with — tenants, customers, members of the public — simply because of the position they’d been given.

By the time the idea had spread through court after court, a pattern had settled: if you put someone in a position where they could do harm, and you had reason to know they might, the responsibility for that didn’t disappear once you’d made the hire. It followed you.

The Problem Nobody Could Solve Yet

Here’s where it gets interesting, and where this chapter connects back to Part 1.

Courts were, in effect, telling employers: you have a duty to know. But in 1908 — and for a long time after — there was no real way to fulfil that duty at scale.

There was no database of past incidents to check. No criminal record you could search from your office. If you wanted to know whether someone had a history of trouble, you were back to word of mouth: asking around, hoping someone who knew the truth was willing to say it.

So employers were left holding a legal standard with nowhere to stand. They could be found negligent for not knowing something that, realistically, there was often no practical way to have found out.

That gap — between what the law expected and what was actually possible — didn’t get resolved quickly. It sat there, mostly unresolved, for the better part of a century.

It’s not a coincidence that the background screening industry, as an actual formal marketplace, only really took shape decades later. The legal pressure had been building since 1908. What finally caught up with it wasn’t a change in the law. It was a change in what employers could technically find out.

And that’s where we’re headed next: the digital leap, and the point at which “reasonable care” finally became something an employer could actually deliver on, rather than just something they were expected to.

The Question We Were Always Trying to Answer

For now, here’s the part worth sitting with: the idea that you’re responsible for who you bring into your business, your home, or your life — not just for what they do, but for what you should have known before they got there — isn’t a modern invention, or a symptom of a more suspicious world.

It’s well over a century old.

We’ve just spent all that time catching up to it.

Credence’s background checks exist to close exactly that gap — giving you a real, practical way to know, so “I didn’t know” doesn’t have to be where your due diligence ends.

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