There Is No Legal Duty to Perform Background Checks on Every Applicant

Employment practices

Key point 10-04. A church may be liable on the basis of negligent selection for a worker's molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.

Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key point 10-05.3. Churches can reduce the risk of liability based on negligent supervision for sexual misconduct involving adult victims by adopting risk management policies and procedures.

Do employers have a legal duty to perform criminal background checks on every applicant for employment? No, concluded a federal appeals court applying Mississippi law. A female worker (the "plaintiff") was raped by a co-worker. She sued her employer, claiming it was responsible for her injuries on the following grounds:

• Mississippi law imposes a duty on employers to conduct criminal background checks, at least within the factual circumstances of this case.
• The employer breached "self-imposed duties" by failing to comply with its own internal policies that required it to conduct background checks on all new hires.
• The employer's failure to conduct criminal records checks on its employees violated an "industry practice."

A federal district court dismissed the plaintiff's lawsuit, and the plaintiff appealed. A federal appeals court concluded that Mississippi law "does not support her first two arguments. Furthermore, she offers virtually no authority for the proposition that [her employer] had a duty to conduct criminal background checks on [its workers]." As a result, the court affirmed the district court's dismissal of the plaintiff's lawsuit.

Do employers have a legal duty to conduct criminal background checks on new employees?
The court noted that "numerous other jurisdictions" have addressed this question, and that the "unanimous rule, with only minor and nuanced deviation, is that: 'One can normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation …. We decline to infer a generalized duty on employers to conduct criminal background checks on all prospective employees ….'"

The court noted that the employer hired the assailant to work on an environmental remediation project, and that

Nothing about the nature of that work could have suggested to [the employer] that he was likely to subject [the plaintiff] to the risk of assault, or was otherwise uniquely incompetent to perform the work. If a criminal background check were necessary to screen for indicia that a manual laborer might assault a co-worker, it is difficult to envision a fact pattern in which a background check would not be necessary. Of course, the unanimous case law from around the country says that there is no such generalized duty on employers, to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employments.

The court noted that this conclusion was strengthened by the fact that Mississippi's legislature has mandated that employers conduct criminal background checks on all new hires in specified fields, including teachers, health care facility employees, nursing home administrators, and pharmacists. It reasoned that "if Mississippi's legislature intended to rely on common law principles to impose a duty on employers to conduct criminal background checks on all employees, it would not have resorted to statutes to impose them in specified fields …. Similarly, by not specifying manual labor as a field requiring background checks, Mississippi's legislature created the strong inference that it did not intend to mandate them for all new hires in that field."

The court concluded:

We are especially hesitant to impose a generalized common law duty to conduct background checks under Mississippi law when (i) no prior Mississippi precedent directly imposes such a duty; (ii) the Mississippi Supreme Court has expressly adopted Section 213 of the Restatement (Second) of Agency, which rejects such a duty; (iii) no other jurisdiction imposes such a duty in comparable circumstances; and (iv) Mississippi's legislature has imposed a statutory duty to conduct background checks in certain specified fields, but not in the instant one.

Is non-compliance with internal corporate hiring policies evidence of negligence under Mississippi law?
The plaintiff claimed that the employer's internal policies, which purportedly required background checks on all new hires, created a legal duty that it breached. The court concluded that an employer's violation of its own internal policies did not, in itself, establish negligence: "Under Mississippi law, breach of one's internal policies may be considered in determining whether one has exercised the appropriate standard of care …. However, internal policies are only one consideration among many in that determination …. We are not aware of any cases in which a party's violation of its own internal safety policies established a dangerous condition per se …. For these reasons [the plaintiff's] second argument also fails. [Her employer's] non-compliance with its internal policies, which purportedly require background checks on all new hires, is not dispositive evidence of their breach of duty [of care]."

Are criminal records checks on employees an "industry practice" that the employer violated?
The plaintiff insisted that conducting background checks on all new hires is "standard corporate practice," and so the employer's failure to conduct a criminal records background check on the assailant amounted to negligent hiring. The court rejected this argument, noting that "non-compliance with an internal corporate policy or custom is evidence merely suggestive of breach of duty, not evidence dispositive of it."

What This Means For Churches:
This case is important for the following reasons:

1. It is a ruling by a federal circuit court of appeals. Such rulings are controlling in the relevant circuit (in this case, Louisiana, Mississippi, and Texas), and generally are given great deference by courts in other jurisdictions. So, the court's analysis of an employer's duty to conduct criminal background checks is a significant legal precedent.
2. The court concluded that "the unanimous case law from around the country says that there is no generalized duty on employers, to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employments."
3. Every state legislature has enacted legislation mandating criminal records checks on persons seeking employment in specified occupations, such as teaching. The court concluded that these laws demonstrate that no generalized duty on the part of all employers to conduct criminal records checks exists, since if a legislature "intended to rely on common law principles to impose a duty on employers to conduct criminal background checks on all employees, it would not have resorted to statutes to impose them in specified fields."
4. The court concluded that an employer's noncompliance with its internal policies is evidence of negligence, but does not establish negligence.
5. This case should not be viewed by church leaders as an excuse not to screen workers. Rather, it can be used by churches to defend against a negligence claim in the event that an employee or volunteer for whom a criminal records check was not performed sexually molests a child or an adult. These failures can occur in a number of ways. For example, a long-term volunteer worked at the church long before a criminal records check policy was adopted, and the church decided to perform these checks only on new workers.
6. The best practice, whether or not required by applicable law, is for churches to conduct thorough background checks, including references, criminal records checks, and a review of the national sex offender public registry (nsopw.gov). While familiarity with legal requirements is essential, such requirements are superseded by the moral constraints imposed by the higher law of scripture, which commands the community of faith to protect those who are made in God's image.
7. The sexual abuse of minors by persons working for churches and other youth-serving charities is a persistent and virulent threat. Our research reveals that the sexual abuse of minors has been the number one basis for church litigation in six of the past seven years. Many secular charities—including public schools, Boy Scouts of America, Girl Scouts, Big Brothers and Sisters, Boys and Girls Clubs, youth soccer leagues, 4-H, and Little League—have responded to this risk by mandating criminal records checks for persons who will work with minors. Many churches are doing the same. Criminal records checks not only reduce the risk of child molestation, but they also reduce the risk of institutional liability based on negligent selection. They also are relatively inexpensive and easily accessible.

Many leaders of churches and other youth-serving charities were stunned when the U.S. Equal Employment Opportunity Commission (EEOC) suggested recently that the use of criminal records checks may violate Title VII of the Civil Rights Act of 1964, which generally prohibits discrimination in employment on the basis of race, color, national origin, gender, or religion, by employers with at least 15 employees that are engaged in interstate commerce.

Do churches and other youth-serving charities, in their efforts to protect children by requiring criminal records checks for youth workers, thereby expose themselves to liability for violating Title VII? It's a classic dilemma—an attempt to avoid one form of liability results in potential liability for another.

The court alluded to this potential basis for liability by noting, in a footnote, that because of its dismissal of the plaintiff's claims "we need not address [the employer's] arguments concerning the potential conflict of such a generalized duty [to conduct criminal records checks on all employees] especially if an adverse background check would jeopardize the prospective hire's employment, with Title VII of the Civil Rights Act of 1964 and its implementing regulations." Keen v. Miller Environmental Group, Inc., 702 F.3d 239 (5th Cir. 2012).

Screening workers

* See "Employment practices," Keen v. Miller Environmental Group, Inc., 702 F.3d 239 (5th Cir. 2012), and "Sexual misconduct by clergy, lay employees, and volunteers," Doev. Corporation, 964 N.E.2d 370 (Mass. App. 2012), in the Recent Developments section of this newsletter.

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