MGT 4110- Chp 5 Background Checks

M. P. v City of Sacramento, 177 Cal. App. 4th 121 (3d App. Dist. 2009), review denied, 2009 Cal. LEXIS 11669.

The appeals court decided that the city did not have respondeat superior liability for the sexual assault by the firefighters. The firefighters were not acting within the scope of their employment when the assault occurred. Prior case law finding a city liable for a sexual assault perpetrated when an on-duty police officer had detained a woman, even if still viable, did not extend beyond the realm of police work to other types of public employees. The firefighters in this case had "no coercive authority over the victim." They did not purport to detain her for an investigation or claim to be engaged in any work duties. "[T]hey simply invited her to take photographs of them in the fire truck. Their alleged nonconsensual sexual assault was motivated for strictly personal reasons not related to their duties and performance as firefighters; indeed, one of them was off duty. The sexual acts were not reasonably necessary to the firefighters' comfort, convenience, health, and welfare while at work. The acts were not precipitated by a work-related dispute over performance of their duties. The harm to the victim was not a risk that may fairly be regarded as typical of or broadly incidental to the operations of a firefighter."

Forseeability

Whether a "reasonable person" of average intelligence would be able to foresee that hiring an unfit person for this particular position would render injury or harm to others likely.

Qualified priveledge

communication between employers about prospective employers serves important social purposes. If employers have to worry about the strict accuracy of everything they say about former employees, this will choke off the flow of necessary information.

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(Davis v. Ross, 754 F.2d 80 [2d Cir. 1985]) The opinion focused on whether the letter, taken as a whole, could be interpreted as libelous. The combination of expressed dissatisfaction with Davis' work habits, her erroneous inclusion among a group of people who had been terminated, and the recommendation to not hire her could be viewed as defamatory. The court also dismissed the lower court's view that the statements were mere opinion rather than purported fact. Since the letter purported to be based on facts and was distributed to others, it was not a mere personal opinion. The case was remanded and the court did not consider the issue of qualified privilege. Presumably, the unsolicited distribution of the letter with its recommendation not to hire could be viewed as both malice and overly broad publication. The failure to verify the simple fact that she had not been fired could also be viewed as reckless disregard for the truth.

Elements of a Claim of Negligent Hiring

1) A standard of conduct or duty to others existed which required an employer to take reasonable steps to avoid hiring unfit employees. Such a duty is based on: Foreseeability of harm to others if an unfit person is hired for a particular job. Knowledge of unfitness that employer had or should have had if proper hiring procedures were used. Public policy (e.g., trucking highly regulated)

Elements of a Claim of Negligent Hiring, contd.

2) The employer failed to exercise the proper degree of care and hired an unfit employee. 3) A coworker or third party was harmed by the unfit employee. 4) The employer's failure to exercise the proper degree of care in hiring was the proximate cause of the harm that occurred

Does the city have respondeat superior liability for the harmful acts of these fire fighter?

A 24-year-old woman was working as a photographer at the "Porn Star Costume Ball," at a Sacramento, CA hotel. A firefighter captain attended, and allowed firefighters to attend, to drive their trucks there, and to "pick up" women. Some of the firefighters were on duty, and some were drinking alcohol. The woman was asked to take pictures of the firefighters, and while she was in the truck taking pictures, she was sexually assaulted by two firefighters, one of whom was on duty. This was not the first time that firefighters had been permitted to take fire trucks to bars and parties.

Was the injury to plantiff foreseeable in the circumstances, and the evidence sufficient to support the jury's finding of negligent hiring?

A man was hired by a music festival organizer to be "camping staff, front," and was given a wristband which allowed him access to the entire concert venue, a T-shirt which identified him as staff, and the authority to ask for ID from concert-goers. He was hired through an internet application which did not inquire about criminal background or drug use. He had a conviction for sexual assault, a drug problem, and no long-term employment history. Within 32 hours of his hire, he sexually assaulted a patron of the concert and she sued, alleging negligent hiring. The employer argued that due to the low-level non-security nature of the job, they owed her no special duty of care, and her injury was not foreseeable.

Does the passenger have a valid claim under respondeat superior liability or negligent hiring?

A passenger on a flight was greeted by a flight attendant whom he had never met and told that she liked his smile and that "he would be her #1." During the flight, the flight attendant hit the passenger on the head with her open hand several times in order to initiate a conversation. The passenger moved to another seat to get away from the flight attendant. The flight attendant subsequently poured water on his lap. She proceeded to place stickers labeled "fragile" on the passenger's arm, cheeks, and crotch. The flight attendant forcibly attempted to kiss the passenger on the lips. She also rubbed her tongue along the rim of a beer can before handing it to the passenger. After the plane landed, the flight attendant grabbed the passenger and kissed his lips in an effort to get "one last kiss" while he was standing in line waiting for a rental car.

Investigative report

A report containing similar information, but also based on personal interviews with friends, neighbors, and other associates.

Elements of a claim of defamation

A statement is made that purports to be factual in nature. The statement is false or substantially false. The statement challenges the character, integrity or ability of another person. The statement is "published" to a 3rd party, either orally (slander) or in writing (libel). The reputation of the person is harmed.

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According to a 2001 report by Public Personnel Management, employers have lost more than 79 percent of negligent hiring cases. a recent article released by Human Resources Management noted the average settlement of a negligent hiring lawsuit is nearly $1 million.

Negligent Referral

An employer gives a reference with incomplete information or misrepresents the work record of a former employee. If that employee then harms others, the employer giving the reference may be liable for negligent referral.

Bottom Line

An employer is NOT legally required to give a reference. HOWEVER, If an employer chooses to give a reference, it must be truthful and not misleading.

Consumer credit report

Any communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, character, or reputation, which is to be used as a factor in assessing eligibility for employment purposes.

Advice for conducting background checks

Be especially wary of rush, last-minute hiring decisions. Inconsistencies and gaps in information provided by applicants must be discovered and confronted. The scope of a background check will depend on the position to be filled and its duties. Background checks should be more extensive if there is a greater chance that unfit employees could do harm to others.

Best practices- Departing Employees

Before providing references, ask the employee to sign an authorization form. Negotiate with an employee who is leaving on an agreed letter of reference. Make certain that only authorized employees give references. Make sure references are based on documentary evidence.

Defenses against Defamation

Consent Qualified Privilege Between Employers This protection can be lost if: The statement was made with malicious intent to harm the person's reputation, or reckless disregard for the truth Publication of the statement was overly broad. Discuss Thompson v. Bosswick

Characteristics of jobs that create greater forseeability

Contact with children, older persons, the mentally ill, and other vulnerable segments of the public Discuss Navarete v. Naperville Psychiatric Ventures Jobs involving personal care and medical treatment Relatively unsupervised work Jobs affording substantial access to the homes and personal possessions of others

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Courts sometimes look to public policy as an indication that a particular type of employment is sensitive and calls for greater care in hiring. For example, in a case involving an employer's failure to check the criminal history of a truck driver, the court gave considerable weight to the fact that trucking is a highly regulated industry and one in which employers have an obligation not to entrust unfit persons with large, potentially lethal vehicles.

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Distinguish between "arrests" and "convictions." Employers may inquire about convictions, but not arrests. Distinguish between "misdemeanors" and "felonies." Felonies are serious crimes. Employers should use an investigative service and make sure the search is sufficiently broad. If the information indicates unfitness where there is foreseeability of harm, applicants should not be hired. African Americans and Latinos are far more likely to be arrested or convicted, and the US imprisons far more citizens than other countries. Thus, policies limiting employment based on criminal histories may create adverse impact.

Immigration Reform and Control Act

Employers are prohibited from knowingly hiring or retaining unauthorized aliens. Note that an employer must check the eligibility of ALL hires, not just applicants from other countries. The Tennessee Lawful Employment Act requires all private employers with six or more employees to use the federal E-Verify program or require all new hires to provide certain identity and employment authorization documents. Employers with 4 or more employees may not discriminate in hiring or termination decisions based on national origin and citizenship. This protection against discrimination applies only to US citizens and legal immigrants. This requirement does not prohibit employers from preferring US citizens over aliens when two individuals are equally qualified.

Liability Based on Negligence

Employers have a duty to exercise reasonable care in carrying out certain activities: Hiring Training Supervision Retention

Advice for conducting background checks contd.

Employers should document all attempts to gather information, even if those efforts are not successful. If you must hire without a background check, hire, do the check, and fire the employee if you later determine he is unfit.

Negligent Hiring

Example: A furniture company was found liable for $2.5 million for negligent hiring and retention of a deliveryman who savagely attacked a woman customer in her home. (Tallahassee Furniture Co., Inc. v. Harrison) The average settlement is nearly $1 million. Employers often loose negligent hiring cases.

Fair Credit Reporting Act

FCRA only applies to the obtaining of information from consumer reporting agencies, which is broadly defined. Employers must: Disclose that a credit report will be obtained and must receive authorization to do so on a separate form. ("blanket authorizations" are permissible) Provide the applicant with a "pre-adverse action disclosure" prior to taking any adverse action, if based in any part on credit report. Provide an "adverse action notice" after action is taken.

Example: Ponticas v. K.M.S. Investments

Facts: A man was hired to manage an apartment complex and was given a passkey to all of the apartments. Upon learning that one tenant's husband was away, he entered her apartment, raped her at knifepoint and tried to strangle her. She escaped, reported the assault, and sued his employer. Issue: Was the evidence sufficient to support the jury's finding of negligent hiring? Held: Yes. The employer had a duty to conduct an adequate background check, based on the foreseeability of harm from one with access to tenants' apartments. The man had a criminal history, was still on parole, and could not provide bona fide references, which the employer would have known if it had checked.

Example: Sigal Construction v. stanbury

Facts: A man was terminated from his job as a project manager, the reason for his firing was in dispute. When giving a reference to a potential future employer, a manager at his former employer made disparaging statements, although he had never observed, supervised, evaluated or read an evaluation of the employee. The man sued for defamation. Held: The jury found in his favor. There was sufficient evidence the plaintiff had been defamed with recklessness or indifference to the truth, thus, the employer's qualified privilege was lost.

Example: Davis v. Board of County Commissioners

Facts: A prison employee facing disciplinary action for inappropriate sexual conduct with female inmates resigned before his hearing and sought work at a mental health facility. His former employer (the prison) provided very positive references and did not mention the disciplinary hearing. He was hired, and assaulted a female inmate. The patient sued based upon the false letters of recommendation. Held: If an employer chooses to give a reference, it has a duty not to misrepresent when the risk of harm is foreseeable and substantial.

Criminal Records

Failing to check for a criminal history may be clear evidence of negligent hiring. Employers should not use information related to prior arrests. Employers should distinguish between felonies and misdemeanors. Employers should not exclude all persons with prior criminal convictions.

Respondeat Superior Liability?

For example, a bill collector who commits Assault and Battery to extract an overdue payment subjects the employer to legal liability. The legal relationship between an employer and an employee is called agency. The employer is called the principal when engaging someone to act for him. The person who does the work for the employer is called the agent. The theory behind respondeat superior is that the principal controls the agent's behavior and must then assume some responsibility for the agent's actions. When the facts show that an employer-employee (principal-agent) relationship exists, the employer can be held responsible for the injuries caused by the employee in the course of employment. In general, employee conduct that bears some relationship to the work will usually be considered within the scope of employment.

Does Gail have a valid Defamation claim?

Gail Davis worked as an executive assistant to Motown legend, Diana Ross. After about a year, the woman voluntarily resigned. About a year later, Diana Ross wrote and distributed the following letter: "To whom it may concern: The following people are no longer in my employment. [list of former employees including Gail Davis] If I let an employee go, it's because either their work or their personal habits are not acceptable to me. I do not recommend these people. In fact, if you hear from these people, and they use my name as a reference, I wish to be contacted." Gail Davis had not used Ms. Ross as a reference, nor had any employer requested information from her about Gail Davis. Ms. Davis sued Ms. Ross.

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Held: Yes. In terms of foreseeability, the temporary, low-level nature of the job and the fact that it was not a security job did not mean that foreseeability of harm was lacking. The job entailed considerable contact with the public and provided camping staff with the ability to move freely throughout the area, knowledge of campers' locations, and awareness of which campers were unaccompanied. Furthermore, campers were especially vulnerable due to their heavy use of alcohol. The organizers recognized and worried about the potential for sexual assaults to occur. Knowledge of unfitness was available and included the employee's prior (about 12 years earlier) conviction in another state for first-degree sexual assault and numerous terminations from jobs [the court also refers to his treatment for drug addiction and homelessness, although both of these are questionable as indicators of unfitness]. The organization hired many (1400) temporary staff and used an exceedingly slipshod hiring process. The process consisting of asking for only minimal identification and work history, conducting unstructured interviews, failing to establish criteria for hiring decisions, and not conducting any checks of references or criminal background was not at all consistent with the level of care that a reasonable employer would be expected to exercise under the circumstances. The basic criterion for being hired was whether candidates "sound like good people" on the phone. In the hiring of the individual in question, there might not have even been an interview and the hiring occurred even though the man provided a false address and no references. Serious harm occurred in the form of a sexual assault. The failure to exercise proper care in hiring was the proximate cause of this harm. The assault occurred while the employee was on the job and within little more than a day of the start of his employment.

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Issue: Whether an employer owes potential employers and foreseeable third parties a duty of care not to misrepresent when a substantial risk of harm is foreseeable.

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Issue: Whether the former employer defamed the former employee in a manner that disqualified the firm from its qualified privilege. Held: There was sufficient evidence from which a reasonable jury could find the employee had been defamed with recklessness or indifference to the truth, so that the employer's qualified privilege had been lost.

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It has long been recognized that a blanket policy of denying employment to any person having a criminal conviction violates Title VII as such policies have an adverse impact on minorities. Courts are particularly skeptical of adverse employment decisions based solely on arrest records because statistics show that minorities are arrested at a higher rate, and many arrests never lead to convictions.

Primary Areas of Legal Risk

Negligent hiring - extends liability beyond respondeat superior Reliance on criminal records Defamation Compliance with the Fair Credit Reporting Act Compliance with the Immigration Reform and Control Act

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Negligent supervision is when an employer fails to reasonably monitor or control the actions of an employee, allowing them to cause harm to others.Negligent training is when an employer's training of the employee fails to prevent the employee from engaging in acts that cause injury.

Knowledge

Refers in this context to the fact that the employer was aware, or should have been if proper screening procedures had been followed, that the person hired was unfit. The employer will not be liable for negligent hiring if information indicating unfitness was not available to be found.

Verifying Employment Eligibility

Required for all newly hired employees Within 3 days after a new hire begins work, the employer must verify employment eligibility by completing federal Form I-9. The form and any copies of documents must be kept separate from employees' personnel files and retained for three years from the date of hire or one year after employment is terminated, whichever is longer. Discuss Ketchikan Drywall Services v. Immigration & Customs Enforcement The Form I-9 requires certain documents as proof of eligibility, including: Driver license Birth certificate US passport Resident alien registration card Unexpired employment authorization document

Twardy v. Northwest Airlines

Respondeat superior liability was rejected because the flight attendant was acting outside of the scope of employment when she allegedly committed battery (unauthorized touching of another person). Even though most of the actions occurred while the flight attendant was on the job, they were not the types of acts she was hired to perform and the employer's interests were not being served. Nor was there any evidence to support a negligent hiring claim. There was no indication that evidence of unfitness existed that the airline failed to uncover when it hired her or that she had acted in this manner on the job before and the airline negligently retained her services. However, the court found that as a "common carrier" (a provider of public transportation), the airline could be held liable for the torts of its employees even when they acted outside of the scope of their employment. Common carriers have a high duty of care for the well-being of passengers. Thus, the airline could be held liable for the battery that occurred on the plane, although not anything that occurred after the plane landed.

Criminal Records contd.

The EEOC has said that the job-related and consistent with business necessity defense to adverse impact claims can be met by: Showing data or analysis linking the criminal conduct in question to unacceptable work performance or behaviors; Developing a targeted screen that considers the seriousness of the crime, the time elapsed since its commission and its job relatedness while also providing for individualized assessments of people screened out; or Showing the existence of other federal laws requiring exclusion based on criminal history.

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The plaintiff's case was hindered by some less than artful pleading by his lawyer. Respondeat superior was rejected because the flight attendant was acting outside of the scope of employment when she allegedly committed battery (unauthorized touching of another person). Even though most of the actions occurred while the flight attendant was on the job, they were not the types of acts she was hired to perform and the employer's interests were not being served. Nor was there any evidence to support a negligent hiring claim. There was no indication that evidence of unfitness existed that the airline failed to uncover when it hired her or that she had acted in this manner on the job before and the airline negligently retained her services. However, the court found that as a "common carrier" (a provider of public transportation), the airline could be held liable for the torts of its employees even when they acted outside of the scope of their employment. Common carriers have a high duty of care for the well-being of passengers. Thus, the airline could be held liable for the battery that occurred on the plane, although not anything that occurred after the plane landed.

Unlawful background check policy costs Pepsi Big

Under Pepsi's former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense. Pepsi's former policy also denied employment to applicants who had been arrested or convicted of certain offenses that were relatively minor. The EEOC claimed that more than 300 African Americans were adversely affected . To resolve a race discrimination suit, Pepsi Beverages agreed (1) to pay $3.13 million, (2) provide jobs for victims of former background check policy, and (3) provide training for hiring managers.

Respondeat Superior Liability

Under the common law doctrine of respondeat superior, employers are generally liable for harm to others caused by employees acting within the scope of their employment. Employees are deemed to be acting within the scope of their employment when: Their actions relate to the kind of activities they were hired to perform; Take place substantially within the workplace during working hours; and Serve, at least partially, the interests of the employer.