Criminal Background Checks: Controlling Risks For Employee Related Litigation
By: Washington State Litigation and Employment Lawyer Timothy E. Steen
Employers face increasing litigation risks from the wrongful acts of their employees as the law of negligent hiring and retention expands. Employers are potentially liable for negligent hiring when employing an unfit applicant who poses an unreasonable risk of harm to others. If an employer should have known of an employee’s unfitness at the time of hiring and the employment leads to the harm of a third person, employers may face substantial liability. Additionally, if the employer learns of the employee’s unfitness during the course of employment, an employer may be liable to a later injured party for retaining that employee. Criminal background checks are key in controlling this type of risk.
Historically, criminal background checks have been viewed by many employers as necessary only for the most sensitive industries or positions that involve working with children or vulnerable adults. Legal trends indicate that this is no longer a safe assumption, if it ever was. While legislatures have passed laws requiring background checks on some of the most sensitive employment positions, the common law shows that liability for hiring unfit employees can extend to almost any position. Employers have faced liability for a growing number of positions that may not have previously warranted background checks such as salespeople, janitors, repair technicians, ushers, bookkeepers, warehouse guards, bus and cab drivers, maintenance personnel, laborers, and even temporary workers. This expanding list of positions shows that a criminal background check may be no less obligatory for an employer than if such a check were required by statute.
A claim for negligent hiring can be a powerful tool against employers, who are often viewed as the “deep pocket” in a lawsuit. Traditional claims of respondeat superior liability only entail indirect employer liability for employee actions committed during their employment. Intentional injuries caused by employees are not within the scope of employment and typically do not lead to employer liability. Negligent hiring claims, on the other hand, assert direct claims against the employer for its own acts in hiring the unfit employee regardless of whether the employee was acting within the scope of employment or whether injuries were intentional.
Washington, like many other states, recognizes claims for negligent hiring. To establish negligent hiring, a plaintiff must prove the employer knew, or if careful, should have known of the employee’s unfitness at the time of hiring and the employer’s negligence caused the harm. The harm must have been reasonably foreseeable by the employer, which is determined by use of a balancing test. If there is a likelihood of subjecting third persons to harm, a higher degree of care is imposed and a background check may be required.
In practice, Washington’s balancing test to determine whether an employer should have conducted a background check offers little refuge to employers facing claims from seriously injured people. Too frequently, even the most remote acts will be found foreseeable by courts and juries when confronted by a sympathetic plaintiff who has suffered serious injuries. For example, in Ruschner v ADT, Sec. Sys. Inc., an off-duty, security system salesman returned to a home he visited two months earlier. The salesman forced his way into the home and raped a 14-year-old minor living in the home. While the salesman’s criminal record contained petty crimes, he had no history of violent or sexual crimes at the time of hiring. Although the case was originally dismissed, the Washington Court of Appeals reversed the dismissal determining that a criminal background check of the salesman could have revealed his unfitness for the job and prevented the employer from sending him to the home and exposing the minor to her assailant. Another example can be found in Carlsen v Wackenhut Corp., where a staff member responsible for screening concert goers was contacted by two minors while away from his post. The screener led one of the minors under the concert stands and attempted to rape her. The screener’s criminal record listed no sexual crimes. The Washington Court of Appeals reversed the dismissal of the case after determining that a background check would have put the employer on notice of the employee’s potentially violent nature and stopped the employer from exposing concert goers to a potentially violent employee. As the Ruschner and Carlsen opinions both demonstrate, even the most remote events can form the basis of liability for an employer that fails to conduct criminal background checks on its employees.
Criminal background checks are available quickly and inexpensively from a variety of services. An employee background check is one of the least expensive tools an employer can utilize to minimize risk of litigation and risk to its bottom line, reputation, and customers. While an employer using background checks will have to fulfill legal obligations concerning the use and storage of employee background information, the additional obligations and nominal charges are far outweighed by the substantial improvement in risk management. A well-tuned policy regarding employee background checks is a tool that no employer should be without.
If you need help with a claim arising from the acts of an employee or would like to implement a policy concerning background checks, please call Tim Steen at Beresford Booth PLLC.
Beresford Booth PLLC (425.776.4100), www.beresfordlaw.com.
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