Negligent hiring, retention, and supervision: in the workplace, the past is prologue. Employers that haven't done their homework can be held liable for workers' violent acts.
But when two students accused him of sexual molestation, a police investigation revealed that the teacher was a convicted felon who had molested eight students at another school. His record did not come to light when he was hired because the school district did not conduct a criminal record check, did not require references, and did not ask the teacher to explain a 10-year gap in his resume. As a successful civil suit later proved, the harm to the victims was both the teacher's fault and the result of the school district's dangerously inadequate procedures for pre-employment screening and supervision. (1)
The workplace can be dangerous. Between 1993 and 1999, workplace violence constituted 18 percent of all violent crimes in the United States. (2) Such crimes were often preceded by warning signs that should have alerted an employer to an employee's or job candidate's propensity for harming others. When employers miss or ignore such red flags, they may be liable if an employee (or independent contractor (3)) intentionally harms a third party. Attorneys should consider claims for negligent hiring, retention, and supervision whenever potential clients have been injured by on-the-job perpetrators.
A claim for negligent hiring has a powerful advantage over those based on traditional respondeat superior liability, in which an employer is only vicariously liable for an employee's misconduct--and only if the tortious acts were committed within the scope of employment. In a claim for negligent hiring, an employer can be held directly liable for its own conduct, and liability can be imposed even when an employee's acts were outside the scope of employment.
While there are limited circumstances in which intentionally injurious conduct can fall within the scope of employment--such as when a store security guard or a bar bouncer uses force to subdue a customer (4)--the general rule is that assaults and other intentional torts are not within the scope of employment and cannot be the basis for respondeat superior liability. (5) However, intentional misdeeds can give rise to a claim for negligent hiring.
A cause of action for negligent hiring is based on the principle that an employer may be directly liable if it negligently hires an applicant for work that involves an unreasonable risk of injury to others. Liability can arise, as the Virginia Supreme Court noted in 1999, when an employer places an employee "with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others." (6)
A number of states follow the rule set forth in the Restatement (Second) of Agency [section] 213, which states that a "person conducting an activity through ... agents" is subject to liability if he or she negligently hires "improper persons" for work that exposes others to harm. While the states define negligent hiring differently, two common threads emerge: The employer knew or should have known of the dangerous propensities of a candidate, and hiring the applicant anyway was the proximate cause of the victim's injuries.
Duty to investigate. Before taking on a negligent hiring case, it is important to know what duty an employer had to investigate the backgrounds of its job candidates. Many courts evaluate this duty by employing a balancing test: The more a position exposes third parties to harm, the greater the duty to investigate. (7) For example, a day-care worker may require more screening than an office administrator.
Most states require criminal record checks for particularly sensitive positions like teachers, day-care providers, and home health aides. (8) However, just because no statute mandates a background check for a particular position does not mean that investigation is not required. Where there is no statute, the common law duty of reasonable care may obligate an employer to conduct a criminal record check or use other methods of screening. In Welsh Manufacturing v. Pinkerton's, Inc., the Rhode Island Supreme Court affirmed a jury verdict that found an employer negligent for doing little beyond a statewide criminal record check of a candidate for a security guard position in a factory with sizable quantities of gold. The court faulted the defendant for failing to obtain "current intelligence" about the guard before hiring him. He later took part in a conspiracy responsible for the theft of more than $200,000 in gold. (9)
Background investigations and discovery requests. Employers have many tools for screening job candidates: applications; resumes; references; interviews; education verifications; checks of criminal and credit records; fingerprints; civil records; Social Security traces; driving records; professional license verifications; drug testing; and personality testing. (10) Which, if any, of these methods should be used depends on state statutes and common law and on the chance that someone in that position could harm a third party.
Much of the information obtained during the screening process may constitute a "consumer report" under the federal Fair Credit Reporting Act (FCRA). (11) The FCRA governs not only traditional credit reports, but also information, such as the types listed above, frequently used in screening. If the information sought constitutes a consumer report under the FCRA, the federal statute requires the employer to inform the candidate that it is performing a background investigation, that the applicant has the right to request additional information about the investigation, and (if applicable) that the lack of a job offer was based on the report.
In jobs requiring thorough pre-employment investigations, the FCRA may create a detailed paper trail of the process the employer followed. An attorney pursuing a negligent hiring case should be ready to seek written and oral discovery tracking this communication.
In addition to discovery requests specific to the FCRA, the lawyer should request:
* any other information relating to the employer's pre-employment screening of the perpetrator
* the perpetrator's employment file
* documents that explain the company's hiring policies and practices--including whether such practices were followed for employees with similar positions. (12)
Proximate cause. One of the most common weapons defendants use to attack negligent-hiring lawsuits is proximate cause. Under this heading are two related defenses.
The first is that even if an employer performed an inadequate investigation of a job candidate, the damaging information about the applicant would not have been uncovered even under the most thorough of investigations. In Rodriguez v. United Transportation Co., a bus driver pleaded guilty to sexually assaulting a mentally handicapped passenger. The bus company did not investigate the driver before hiring him. However, the court in a negligent hiring case awarded summary judgment to the company because the driver had no criminal record, there were no customer complaints about him, and he had a good driving record. Even if the company had searched, it would have found nothing. (13)
Victims' attorneys should confront this defense head-on. Early in the evaluation of potential lawsuits, attorneys should conduct their own background checks to determine what employers would have discovered if they had conducted proper investigations. Even thorough investigations are inexpensive. They can reliably indicate the strength of a negligent hiring case.
The other proximate cause defense centers on foreseeability: If the employer had conducted a background check, would it have been foreseeable that the employee would harm another in a particular manner? For the employer to be liable, some states require that the manner in which the perpetrator harmed the victim be identical, or at least similar, to propensities that should have come to light during pre-employment screening. The employer must have had constructive knowledge of a job candidate's "particular unfitness" for a position, and that "particular unfitness" must have been the proximate cause of the plaintiff's injury. (14)
At a minimum, the employee's injurious conduct must have been "consistent with" the dangerous propensity he or she exhibited on prior occasions. For example, in Reed v. Kelly, a security guard sexually assaulted a woman in the building where he worked. Although the guard had been charged five years earlier in connection with an incident of domestic violence and fired from a previous job three years earlier after a fight with a coworker, the court granted summary judgment to the employer because the previous incidents, the court found, were not consistent with sexual assault of a stranger. (15)
Some courts are more flexible, holding that it is not necessary for an employer to foresee that a precise type of injury might result from hiring an applicant. However, at least one court found that the plaintiff must still prove that the employer should have foreseen that an injury "might probably (not possibly) result." (16) Regardless of the court's approach, victims' lawyers should understand that the closer the connection between the perpetrator's dangerous propensity and the actual tortious conduct, the stronger the case.
A claim for negligent retention can be made in addition to or instead of a negligent hiring claim. In some circumstances, a negligent hiring claim is not viable, but a negligent retention claim is.
For example, in Kenneth R. v. Roman Catholic Diocese, a priest ordained in Venezuela who had been transferred to New York pleaded guilty to sexually abusing minors in the diocese. Since the priest had arrived with a letter of reference from his Venezuelan bishop, the court found that the New York diocese could not be held liable for negligent hiring. However, when the diocese failed to act once it learned of molestation complaints against the priest, the victims had a viable claim for negligent retention. (17) In a different case, a Washington appellate court found, "The difference between negligent hiring and negligent retention is the time at which the employer's negligence occurs. With negligent hiring, it occurs at the time of hiring; with negligent retention, it occurs in the course of employment." (18)
Beyond timing, the elements of negligent-retention and negligent-hiring cases are essentially the same. An employer may be liable for its "negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm" third parties. (19) As with negligent hiring, the scope of the duty not to retain dangerous employees depends on the risk of harm inherent in the position--"the greater the risk of harm, the higher the degree of care necessary to constitute ordinary care." (20)
The law in both negligent-retention and negligent-supervision cases recognizes that an employer's duty to avoid employing dangerous people does not end when a job candidate is hired.
An employer may be liable for negligent supervision if it "knows or should know of an employee's [dangerous] unfitness and fails to take further actions such as `investigating, discharge, or reassignment.'" (21)
Many of the courts that recognize a negligent supervision cause of action have expressly adopted Restatement (Second) of Torts [section] 317, which states that an employer must exercise "reasonable care" with an employee who is acting outside the scope of employment "as to prevent him from intentionally harming others or so conducting himself as to create an unreasonable risk of bodily harm to them," if:
* the employee is in the workplace or any place he or she is privileged to enter only as an employee, or is using the property of the employer; and
* the employer knows or has reason to know that it has the ability to control the employee and "should know of the necessity and opportunity for exercising such control."
Plaintiffs seeking compensation for negligent supervision must prove that their injuries were caused by the employment of the dangerous employee. For example, in Hutchison v. Luddy, a priest entered a motel room with a minor who was seeking advice about family problems and sexually molested him. In the ensuing civil suit, the church argued that the motel room was not a premises in its possession, nor was it a place that the perpetrator had a privilege to enter by virtue of his role as priest. Essentially, the defendants said, the abuse that occurred there was not job-related.
The court rejected this argument, finding that the priest entered the motel room because he'd been called upon to counsel a troubled youth. (22) The victim succeeded in his lawsuit because he was able to connect the perpetrator's job and the injury.
Claims for negligent hiring, retention, and supervision can be powerful tools that enable victims to hold employers liable when employees intentionally harm others outside the scope of employment. These causes of action can help crime victims start rebuilding their lives.
(1.) Bill Friedlander of Ithaca, New York, successfully represented the plaintiffs. See William S. Friedlander, A Trusted Teacher with a Pedophiliac Past, VICTIM ADVOCATE, Winter 2002, at 7.
(2.) DETIS T. DUHART, BUREAU OF JUSTICE STATISTICS, VIOLENCE IN THE WORKPLACE 1993-99, 1 (2001).
(3.) See, e.g., Strickland v. Communications & Cable of Chicago, 710 N.E.2d 55 (Ill. App. Ct. 1999); see also Kevin J. McCarthy, Negligent Hiring and Subcontractors: A Case Study, VICTIM ADVOC., Spring 2001, at 2.
(4.) See, e.g., Brown v. Argenbright Sec., Inc., 782 A.2d 752 (D.C. 2001) (involving a security guard); Meyer v. Wal-Mart Stores, Inc., 813 So. 2d 832 (Ala. 2001) (involving a store employee); Palladino v. Piedmont Hosp., Inc., 561 S.E.2d 235 (Ga. Ct. App. 2002) (involving a male nurse).
(5.) See, e.g., Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489 (Tex. Ct. App. 2002). A few states take a broader view of the issue. For example, under Virginia law, it is sufficient for the employee to have committed the tortious act during a service that was within the ordinary course of business. See Gina Chin & Assoc., Inc. v. First Union Bank, 537 S.E.2d 573, 578 (Va. 2000).
(6.) S.E. Apartments Mgmt., Inc. v. Jackman, 513 S.E.2d 395, 397 (Va. 1999) (quoting Ponticas v. K.M.S. Inv., 331 N.W.2d 907 (Minn. 1983)).
(7.) See, e.g., Carlsen v. Wackenhut Corp., 868 P.2d 882, 887 (Wash. Ct. App. 1994).
(8.) Jennifer R. Ellis, Criminal Caregivers: Statutes Requiring Background Checks of Home Health Aides, VICTIM ADVOC., Spring 2001, at 5.
(9.) 474 A.2d 436, 442-43 (R.I. 1984).
(10.) Tricia A. Smith, Negligent Hiring: What You Don't Know Can Hurt You, Nat'l Crime Victim Bar Ass'n Course Materials--Comprehensive Representation of Crime Victim Clients, Oct. 2001, at 81-82.
(11.) 15 U.S.C [section] 1681a (d)(1) (1997); see also James M. Dallas & Ira S. Somerson, Making the Case for Negligent Hiring or Retention: The Importance of Background Checks, VICTIM ADVOC., Spring 2001, at 8.
(12.) Smith, supra note 10, at 78.
(13.) 677 N.Y.S.2d 130, 132 (App. Div. 1998).
(14.) See, e.g., Strickland, 710 N.E.2d 55, 58..
(15.) 37 S.W.3d 274 (Mo. Ct. App. 2000).
(16.) See, e.g., Interim Pers. of Cent. Va. v. Messer, 559 S.E.2d 704, 708 (Va. 2002).
(17.) 654 N.Y.S.2d 791, 795 (App. Div. 1997).
(18.) Peck v. Siau, 827 P.2d 1108, 1110 (Wash. Ct. App. 1992).
(19.) S.E. Apartments Mgmt., Inc., 513 S.E.2d 395, 397.
(20.) Rivers v. Poisson, 761 A.2d 232, 235 (R.I. 2002) (quoting Welsh Mfg., 474 A.2d 436).
(21.) Malicki v. Doe, 814 So. 2d 347, 362 n.15 (Fla. 2002) (quoting Garcia v. Duffy, 492 So. 2d 435 (Fla. Dist. Ct. App. 1986)).
(22.) 742 A.2d 1052, 1060 (Pa. 1999).
James Ferguson is the director of the National Crime Victim Bar Association in Washington, D.C.