Employers involved in an ever-evolving process of vetting potential employees may be faced with the question of what they are to do in the face of a potential candidate whose records were expunged, but nonetheless whose previous criminal records were disclosed in one form or another to the employer? When vetting potential employees, employers use a plethora of means to discover the aptitude of particular candidates, and the potential business risk the candidate may pose.

With its inception in common law, the theory of holding an employer liable for the conduct of their employee while in the scope of employment is not a strange concept. Taken further, holding an employer liable for the conduct of an employee, where the employer knew or should have known the employee may engage in conduct that could injure a third party does not conceptually smack of unfairness either. A subject of debate, however, has been what necessarily constitutes "knew" or "should have known." How does this interact with the concept of expungement? What happens if an employer runs across records of an expunged conviction and the employee commits an offense that brings an employee's propensity to harm into question? The answer, while not explicitly addressed by New Jersey courts, seems to pose two distinct paths forward: one of interposed liability and the other a legal fiction.