It has been more than 20 years since the R.I. Supreme Court handed down the seminal case of Welsh Manufacturing vs. Pinkerton’s Inc., but a recently settled $10 million lawsuit has renewed employers’ interest in the law of negligent hiring.
Negligent hiring claims, like all negligence actions, consist of injury caused by a breach of a duty of care owed to the injured party based on a contract or a foreseeable risk of harm to third parties resulting from an employee’s job position.
Liability occurs when an employer fails to exercise reasonable care and hires someone who the employer “knew or should have known was unfit or incompetent for the employment, thereby exposing third parties to an unreasonable risk of harm.” Reasonable care in employee selection includes a duty to investigate applicants’ work experience, background, character and qualifications.
The extent of the pre-employment investigation required to avoid liability varies based on the potential risk involved. High-risk positions have historically included jobs that entail guarding the safety of others or valuables, jobs that require carrying weapons or handling hazardous materials, and jobs involving vulnerable populations, such as children.
Moreover, certain jobs clearly require a specific type of investigation – for example, applicants for a job that requires driving a car should have their driving record checked.
Given the rise of identity theft, employers should also view positions that expose employees to third parties’ sensitive personal data, such as Social Security numbers, to be high risk.
In the Welsh case, Pinkerton, a security company, hired a 20-year-old man named Lawson and assigned him to guard Welsh’s valuable property. After Lawson stole the valuables he was hired to protect, the court found Pinkerton’s pre-employment screening practices to be insufficient, despite the fact that the employer required Lawson to fill out an application, contacted Lawson’s high school, a previous employer, and a supervisor in the Navy, and reviewed Lawson’s Rhode Island criminal record.
The court specifically criticized Pinkerton’s failure to uncover information from one of Lawson’s former employers who reported Lawson had “sticky fingers” relating to vending machine proceeds and the failure to inquire into Lawson’s degree of honesty.
A trash collection job, on the other hand, would seem to require only a low-level screening – yet that was the kind of job involved in a $10 million suit recently settled for an undisclosed sum. The defendant was the trash company that employed Christopher McCowen, who was convicted of the 2002 murder of fashion writer Christina Worthington.
McCowen’s employer reportedly did not utilize any sort of criminal background check when hiring him, thus leaving the employer unaware that McCowen had convictions in Florida and Massachusetts for burglary, grand theft, trafficking in stolen property and felony assault, as well as having various restraining orders against him.
The question the suit raised, which will for now remains unanswered, is what pre-employment screening practices are reasonable for a low-risk position such as trash collecting?
Pre-employment screening: Given the rise in negligent hiring lawsuits, it is best to do some level of pre-employment screening regardless of the job position, job duration, size of the company or how the applicant came to apply for the position.
Job applications: Employers should always require written job applications. When designing the application, a Rhode Island employer should ask for the applicant’s current and previous addresses, complete employment history, educational history (but no graduation dates), personal and professional references, and information regarding prior convictions (but not prior arrests). The application should also give the employer the permission to verify all information provided in the application.
Employers should review their applications with local counsel to ensure the form does not violate state or local laws regarding discriminatory hiring practices. For example, in Massachusetts it is unlawful to ask for information regarding convictions for specific misdemeanors and any misdemeanor conviction more than five years old.
Interviews: The employer should ensure the interviewer knows what tasks and responsibilities the position will entail, as it is important to ask relevant questions. The interviewer also should ask the applicant to fill in any time gaps in employment history, as a period of unemployment can signify incarceration.
Verification: After the interview, the employer should independently investigate the applicant or hire a third party to do so. All recent employers and references should be contacted. Although they may not share negative information, it is the questions asked – not the answers received – that most often insulate employers from potential negligent hiring claims. In some cases, a criminal background check should also be done.
Employers should make sure the investigator complies with the Fair Credit Reporting Act. The FCRA requires certain procedures regarding an applicant’s permission to obtain the background report, certain disclosure procedures if an employer decides not to hire the applicant based upon the results of the report, and certain disposal procedures for the reports themselves when the employer decides to discard their files.
Documentation: Above all, documentation is crucial. Interviewers should carefully take notes in interview sessions, and the employer should meticulously record attempts to contact references and former employers and obtain records.
Michael A. Gamboli is a partner at Partridge Snow & Hahn LLP and Alicia J. Byrd is an associate. Both are members of the firm’s employment and labor group.
