Negligent Hiring: the Dual Sting of Pre-employment Investigation
| Publication year | 1989 |
| Pages | 15 |
Kenneth R. Wallentine, J.
I. INTRODUCTION
Over the past decade, tort attorneys have found a new tool to pry away the barrier posed by master and servant liability actions.[1] The hurdle of the tortious act being within the scope of the employment may be overcome in some cases by pleading negligent hiring or negligent retention[2] of the tortfeasor. Intentional torts, such as assaults, sexual abuse and theft, are generally found to be outside of the scope of any employment relation. Thus, the doctrine of respondeat superior is not available. For this reason, the majority of negligent hiring suits have resulted from an employee's criminal action or automobile accidents, where the victims seek to reach the insurance policies of the fleet owner or the driver's employer. This, in turn, presents scenarios of victims deserving of the jury's sympathy and often leads to large damage awards.[3] Unfortunately for the practitioner, the paucity of negligent hiring cases dwindles to a true dearth when searching for case law with meaningful analysis of the extent of the investigatory duty. Thus, the employer is faced with uncertainty as she seeks to establish a basis for the hiring selection.
A further frustration for employers and attorneys who advise employers is the severely limited reference that prior employers are willing to offer in response to pre-employment inquiry. Former employers, in fear of state and federal privacy laws, common law defamation actions and Equal Opportunity Employment Commission guidelines, shrink at the thought of doing more than confirming dates of employment. An added concern is the growing body of statutory law limiting the scope of pre-employment inquiry and the bases for which an applicant may be denied work.[4] Therefore, the cautious employer, seeking to hire only competent workers, may be barred from the very inquiry that would guide a wise choise.
This article examines the elements of a negligent hiring claim. The article explores the scope of the employer's duty to conduct pre-employment inquiries, focusing on the nature of the employment duties as a guiding influence. The countervailing considerations against investigation are presented and, finally, limited counsel is presented for mitigation of the employer's risk in hiring.
II. ELEMENTS OF NEGLIGENT HIRING
The foundation of the complaint is that the employer knew, or should have known, about the employee's dangerous qualities. Failing that, the duty of the employer to investigate competence and suitability is breached.[5] The root elements of a negligent hiring action include the establishment of a master and servant relationship, a showing of the employee's incompetence and proximate cause between the employee's incompetence and the injury.[6] The tortious act must occur as an incident of the employment, or during the employee's working hours.[7] The employer's duty extends to the public at large where the public is invited onto the business premises.[8] If the employee is required or allowed onto the plaintiff's premises, such as in the case of a maintenance worker, the duty extends to all those whose premises might be entered.[9]
A negligent hiring claim may reach employer liability when the employee is acting completely outside of the employment. There are significant tactical benefits to styling a complaint as an action for negligent hiring. The employee's prior history and temperament will be at issue and evidence which would otherwise be excluded may be introduced on these points. Furthermore, a negligent hiring complaint might obviate difficulties of a short statute of limitations for intentional torts. Finally, the deep pockets of the employer and insurer become available.
III. THE DUTY OF PRE-EMPLOYMENT INVESTIGATION
A. The Scope of the Investigation
i. A High Duty of Investigation for High Risk Positions
No court has established clear parameters of propriety for pre-employment investigation. Notwithstanding, general guidelines may be distilled from a review of the few cases discussing the duty. The level of the duty may be characterized as one of reasonable care.[10] Reasonableness will correspond with the nature of the duties of the employee, with those having security and landlord responsibilities being subject to the most thorough scrutiny.[11] Conversely, workers with little or no public contact may not be subject to any pre-employment inquiry.[12] As a general proposition, no criminal record inquiry is required, except for positions of high trust, where there are likely circumstances for the commission of an intentional tort.[13] Moreover, the knowledge of a criminal record will not constitute negligence per se; it must be shown that the conviction was for a crime that bore a relationship to the risk incurred through the claimed negligent hiring.[14]
Two million dollars in damages were sought in Cramer v. Housing Opportunities Commission, [15]where the plaintiff was raped by a housing inspector. Slater, the inspector, conducted an inspection of Cramer's townhouse, with Cramer present. During the inspection he asked about the number of occupants of the unit, a question not authorized by the Commission's guidelines. Slater returned later that evening and raped Cramer. Slater did not use a passkey although he had access to them. He likely entered through a window commonly left open for ventilation. Slater was hired through a CETA employment program. At the time he was hired, he was on parole. His previous convictions included robbery, assault and burglary. Just prior to his hiring, he was indicted for rape and other related crimes. The trial judge ruled that there was no causal connection between the Commission's negligence and the rape.
On appeal, the Maryland Supreme Court held that the evidence of prior criminal convictions and the availability of this information to the Commission should have been allowed at trial. Contesting that it had been negligent, the Commission argued that it relied on the investigation conducted by the CETA program. It was shown, however, that this investigation was limited to eligibility factors. The Commission did concede that its duty of investigation was not delegable.[16] The Court also held that Cramer would be able to introduce evidence showing that the Commission failed to contact any of the three references given by Slater, and that least one of the references knew of Slater's criminal record. Also admissible would be evidence showing the relative ease with which the Commission could have obtained a full criminal history. The Court said that there may well be a duty to conduct a criminal record investigation in the hiring for a position of trust, such as a police officer.[17] Notwithstanding, the Court did not go so far as to hold that the Commission is obligated to conduct a criminal record inquiry for a housing inspector. Items such as cost, difficulty of obtaining records, other and indicia of competence, were among factors the Court said should be considered in determining if a criminal record check should be made.[18]
A criminal history inquiry was found appropriate in Estate of Arrington v. Fields.[19]Fields entered a convenience store at which Arrington was working as an armed security guard. Arrington accused Fields of shoplifting and searched him. Fields had no stolen items and was released. Arrington followed Fields into the parking lot where a scuffle ensued and Fields was shot in the lower groin. At trial, evidence was introduced showing Arrington's seven prior convictions and four penal commitments, the most recent of which was 13 years prior to Arrington's hiring. Executive Security Systems, Arrington's employer, claimed that the conviction information was not available, and in any event, the events were too remote in time to be relevant. The Court disagreed on both counts. Arrington had truthfully responded to an application question concerning prior criminal history. Executive Security Systems failed to ask Arrington about his convictions. Furthermore, the conviction information was readily available through the state security guard licensing agency.[20] The Court did not view the time gap as being relevant, showing that perhaps any prior conviction which is germane to the incident leading to a negligent hiring action may be considered by the Court.
The Rhode Island Supreme Court has stated that the mere lack of negative criminal information may not be sufficient when a particularly sensitive employment position is concerned. In Welsh Manufacturing v. Pinkerton 's Inc., [21] a security guard stole $300, 000 in gold. Pinkerton's had requested police records for the guard. However, it did not contact the character references supplied by the guard on his application. Moreover, while previous employers were contacted, and were apparently willing to discuss the guard's employment record, Pinkerton's did not specifically inquire as to honesty, a pertinent quality for a security guard. The Court termed Pinkerton's investigation "cursory, " in light of these defects.[22]
These cases strongly suggest that particularly sensitive occupational categories may require a fairly inclusive investigation. It does not appear, however, that outside of the limited category of security and police employment a criminal record check will be necessary. In one of the most often-cited negligent hiring decisions, Ponticas v. K.M.S. Investments, [23]the Court stressed that a criminal record check was not required in normal hiring situations, even where an apartment manager with passkey access was being hired.[24] The Court stated that if other factors, such as references and employment history, were indicative of suitability, then no resort to criminal records need be made.
Stephanie Ponticas was sexually assaulted by the...
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