Colorado Employers' Duty to Investigate Prospective Employees
| Publication year | 1992 |
| Pages | 2403 |
| Citation | Vol. 11 No. 1992 Pg. 2403 |
1992, November, Pg. 2403. Colorado Employers' Duty to Investigate Prospective Employees
How extensively must an employer investigate a job applicant's background? Today, employers are asking this question with greater frequency because the number of claims against employers for negligent hiring have increased dramatically.(fn1)
Recently, in Connes v. Molalla Transports System, Inc.,(fn2) the Colorado Supreme Court addressed employer liability for negligent hiring. This article presents an overview of the negligent hiring doctrine and reviews the Connes decision.
The negligent hiring doctrine is distinct from the vicarious liability doctrine of respondeat superior.(fn3) The negligent hiring doctrine imposes direct liability on an employer for harm resulting from negligence "in the employment of improper persons or instrumentalities in work involving risk of harm to others."(fn4) Under the theory of negligent hiring, the employer can be subjected to liability for an employee's intentional acts of misconduct, even though the employee acted outside the scope of his or her employment.(fn5) Thus, the negligent hiring doctrine effectively broadens employer liability for employee misconduct.(fn6)
To establish a negligent hiring claim, the courts generally have required proof that:
1) the employer owed the plaintiff a duty to use reasonable care in its hiring procedures;
2) the employer, without exercising reasonable care, hired an individual who was unfit for employment because of a reckless or violent disposition;
3) the employer knew, or should have known through a reasonable investigation, that the employee was unfit;
4) an employment relationship existed; and
5) the plaintiff's injuries were a reasonably foreseeable result of the employer's failure to exercise reasonable care.(fn7)
A negligent hiring claim typically arises where an employee has intentionally harmed a co-employee or other third party, and the injured party seeks to impose liability for the injury on the employer.(fn8) Typical cases of negligent hiring involve employees who have had a history of violent or socially unacceptable behavior.(fn9)
Several states now recognize as an independent tort a claim for negligent hiring.(fn10) Citing the Restatement (Second) of Agency, § 213 (1958), the Colorado Court of Appeals in Colwell v. Oatman(fn11) first recognized that an employer can be subjected to liability for its negligence in selecting employees. In Connes, the Colorado Supreme Court further delineated the parameters of the tort of negligent hiring and joined other jurisdictions in formally recognizing negligent hiring as an independent cause of action.(fn12)
In Connes, the plaintiff was sexually assaulted by the defendant-employer's driver.(fn13) The defendant-employer was engaged in the long-haul trucking business and had hired the perpetrator of the sexual assault as a long-haul driver. On the job application, the driver had indicated that he had never been convicted of a crime, even though he had prior criminal convictions. Before hiring the driver, the defendant-employer contacted the driver's previous employer, who provided a good recommendation. The defendant-employer also investigated the...
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