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Prescreen to avoid getting burned.

Businesses are increasingly held liable for injuries employees inflict on third parties. Preemployment background checks offer the best protection.

Assaults by company employees are not new. Cases are frequently reported involving attacks on co-workers, customers, visitors, and tenants. The general policy supporting employer liability is that innocent third parties have the right to be protected from the acts of dangerous employees.

States that have addressed this issue have all done so in cases where the third party was physically assaulted. Employers have been held liable when they failed to investigate an employee's background adequately, where it was determined that an investigation could have discovered the risk. Employers, therefore, have a duty to investigate.

The federal government and many states have laws requiring applicants in certain fields to undergo a background check before they are hired. Many states, for example, require background checks before qualifying attorneys, private investigators, law enforcement officials, and child-care providers.

Traditionally, where an assault did not occur in the course of employment, third-party lawsuits were barred by the doctrine of respondeat superior. Respondeat superior provided that unless the incident occurred during working hours, the employer was not liable to third parties for injuries caused by employees.

Many states now circumvent the restrictions of respondeat superior with new theories--negligent hiring and negligent retention, applied where a duty to investigate is not imposed by statute. It may no longer matter that the employee was acting outside the scope of employment when he or she caused harm to another. The test instead may be whether there was a duty to investigate the employee's background and whether such an investigation would have revealed a harmful propensity preventing the employee from being hired.

Negligent hiring. People injured by an employee acting outside the scope of his or her employment have a cause of action against the employer. This cause of action has been recognized in most states and is generally known as negligent hiring or negligent retention. In essence, a cause of action is based on negligently conducting a preemployment investigation, failing to conduct an investigation, or negligent hiring with knowledge of dangerous propensity.

The elements of a cause of action include the following:

* The individual in question was an employee of the defendant.

* The employee was unfit for employment.

* The employer knew or should have known the employee was unfit for employment.

* The plaintiff was injured by the employee's acts during a contact with the employee that was connected to the employment.

* The employer owed a duty of care to the plaintiff.

* The hiring of the employee was the proximate cause of the injuries to the plaintiff.

Negligent retention. The theory of negligent retention evolved from the negligent hiring theory. The elements of the cause of action include the following:

* The employee is hired.

* The employer becomes aware after the hiring that the employee is potentially dangerous.

* The employer retains the employee knowing of the danger.

* The plaintiff's contact with the potentially dangerous employee was connected in some way with the employment relationship.

* The plaintiff is harmed during that contact.

The causes of action for negligent hiring and negligent retention are similar. The distinction relates to when the employer knew or could have known of the employee's deficiencies. If the employer knew of the deficiencies before hiring the individual, or could have known about them through a reasonable investigation, an action for negligent hiring or negligent retention may be maintained.

If no facts were available before employment warning of the employee's propensity for violence but such facts became available during the employment, an action for negligent retention could be maintained. In the negligent hiring action, the cause is stated without proving actual knowledge of dangerous tendencies.

In a Massachusetts case, a customer was injured in a bar by an employee. The employer had made no attempt to perform a background check before hiring the employee. The employee had a criminal record of violent offenses. The employer also employed a number of off-duty police officers. These facts allowed a jury to conclude that a dangerous environment existed and the employer was aware of it. The jury determined that the failure to investigate was the proximate cause of the injury.(1)

In another case, Ponticas v. K.M.S. Investments, the manager of an apartment complex used a passkey to gain access to a tenant's apartment and rape her. The court held that employers have a duty to exercise reasonable care in hiring individuals who, because of the nature of employment, may pose a threat of injury to the public.

In addition to being fired from a previous job for drinking, the manager had a prior criminal record for burglary, armed robbery, and theft and had spent time in prison. Although the manager reported that he had been convicted of a crime, he claimed it was for traffic tickets.(2) When applying for the job, he listed his sister and mother as references.

The court ruled that the information contained on the employment application was significant enough to put the employer on notice to check the information. The failure to do so was a breach of the employer's duty of reasonable care.

Most state courts have held that an employer is not required to inquire about an employee's criminal record.(3) To hold otherwise would go against the premise that society must try to rehabilitate those who have gone astray.(4)

Companies whose employees have contact with the public have a duty to exercise reasonable care in selecting and retaining their work force. A business must exercise due care to avoid hiring an employee who is unworthy by habits, temperament, or nature to deal with the people invited to the company's premises. An employer's knowledge of past acts of impropriety, disorder, or violence is sufficient to establish legal foreseeability that the employee may commit an assault. However, a criminal record alone is not enough to establish negligence. Negligent retention depends on the nature of a criminal record and the surrounding circumstances.

An employer will not be held liable for failing to discover information about an employee's incompetence that could not have been discovered by arreasonable investigation.(5) The issue is whether the employer made a reasonable investigation. The scope of what would be considered a reasonable investigation is directly related to the severity of the risk to which third parties would be exposed.

To prove negligent hiring, plaintiffs must prove both foreseeability and proximate cause. Foreseeability is not itself proof of negligence.

Foreseeability. Assuming an employer did not perform a background investigation or did an inadequate investigation, the plaintiff has to prove the injury was foreseeable. This is easy if the plaintiff is an invitee of the employer, such as a tenant, employee, visitor, or customer. Negligence is not determined by whether the particular injury is foreseeable, however. A jury could find that a person with a history of violence will commit another violent offense. Tenants of the apartment in the case mentioned earlier were clearly exposed to foreseeable risks from building employees who had a history of violence.(6)

Proximate cause. For negligence to be the proximate cause of the injury, it must appear that the employer could have anticipated what was likely to result in the injury. If so, the employer is liable for the injury even if the injury could not have been anticipated.

Employers need to recognize that their obligation to perform preemployment screening is not limited to circumstances where the obligation is imposed by law. Employees, customers, and others have a right to expect a safe environment. To the extent that employers can provide that assurance by thoroughly testing applicants, they should do so.

Mark B. Rosen is an attorney in New York City. This article is based on a paper presented at a meeting of the Association of Trial Lawyers of America in Acapulco, Mexico, earlier this year.

1 Foster v. Loft, Inc., 26 Mass. App. Ct. 289, 526 N.E. 2d 1309 (1988).

2 Ponticas v. K.M.S. Investments, 331 N.W. 2d 907 (Minn. 1983).

3 Ponticas v. K.M.S. Investments.

4 Williams v. Feather Sound, Inc., 386 So. 2d 1238, 1241 (Fla. 1980).

5 Foster v. Loft, Inc. See also Kendall v. Gore Properties, 236 F. 2d 673 (D.D.C. 1956); also Stevens v. Lankard and Stone v. Hurst Lumber.

6 Foster v. Loft, Inc.
COPYRIGHT 1993 American Society for Industrial Security
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Title Annotation:Preemployment Screening
Author:Rosen, Mark B.
Publication:Security Management
Article Type:Cover Story
Date:Apr 1, 1993
Words:1394
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