• Key point: Employers may have a duty to investigate the background of prospective workers, particularly if the workers are in positions of responsibility or their application is incomplete.

• A Washington state court ruled that an employer could be sued on the basis of negligent hiring and negligent supervision for the sexual misconduct of an employee. While the case did not involve a church, it is directly relevant to church leaders. Here are the facts. A 16-year-old girl was raped at a rock concert by an usher. The girl later sued the usher’s employer, claiming that it was negligent in hiring the worker since it knew or should have known that the usher had a prior criminal record and was unfit for employment. The girl’s attorney obtained the worker’s criminal history and learned that he had criminal convictions for theft, robbery, criminal trespass, and driving without a license. In addition, the girl pointed to “discrepancies” in the worker’s application for employment that should have put his employer on notice of potential problems. These included: (1) The worker claimed he was a college graduate in response to one question, but stated that he was a high school graduate in response to another question. According to the girl, this indicated a pattern of untruthfulness. (2) The worker left blank a question asking about prior employment. The girl claimed that this indicated an attempt to conceal potential problems with prior jobs. (3) The worker was not asked for his home addresses for the previous 5 years, or where he graduated from high school. The girl claimed that had the employer asked about prior residences, it could have conducted criminal records checks in those locations. (4) The worker did not answer a question on the application asking for permission to contact his present employer. In response, the employer insisted that at the time it hired the worker there were no indications that he posed a risk of sexual misconduct. It claimed that it had no knowledge of the worker’s criminal history, or any reason to conduct a criminal records check. It noted that the worker indicated on his employment application that he had never “been convicted for the violation of any law” and had never “been dismissed, or asked to resign from employment.” A trial court dismissed the lawsuit and the girl appealed.

A state appeals court reversed the trial court and ruled in favor of the girl. It concluded that there was sufficient evidence of negligent hiring to send the case to the jury. It began its opinion by noting that negligent hiring requires proof that “the employer knew or in the exercise of ordinary care should have known of its employee’s unfitness at the time of hiring.” The court concluded that this test was met under the facts of this case:

[The employer] did not check into [the worker’s] background after receiving his application. It did not, for example, contact [his] references to determine if he had a criminal record. These failures seem particularly significant in light of the dearth of information provided by [the worker] and the fact that there were inconsistencies on the face of his application. We are satisfied that a reasonable person might well infer that the lack of information provided by [the worker] and the inconsistencies on the applications should have alerted [the employer] to make further inquiries. In particular [the worker] indicated on his application that he possessed a college degree and, yet, in a different location … he indicated that he had only a high school diploma. He also gave different home addresses …. In addition [he] failed to state who his present employer and previous employers were. The latter omission, arguably, should have aroused concern because [the worker] was, according to his application, 20 years of age. It seems likely, therefore, that this was his first employment. If it was, that fact alone would be significant.

The court went on to emphasize the kinds of steps the employer could have taken. These included: (1) Conducting a personal interview with the worker before hiring him; (2) contacting references to determine the worker’s fitness and suitability; and (3) conducting a criminal records check. The court acknowledged that the degree of screening an employer should perform is related to the duties of the prospective employee. It observed, “[o]ne may 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.” The court concluded that the worker in this case had a position of responsibility for the supervision and custody of minors, and that accordingly the employer had a duty to conduct a thorough background check. The court concluded:

Although [the worker’s] job was not high paying, the circumstances of his employment put him in a position of responsibility. A jury might well conclude that it was reasonable for concert patrons to look upon [him] as one authorized to perform security functions, and that, therefore, [the employer] should have more extensively examined [his] background before hiring him. The need for such a determination by a jury seems especially compelling in light of the limited information and inconsistencies in [his] application for employment.

The employer insisted that even if it had performed a criminal records check, it would not have discovered any previous crime indicating a propensity for sexual assault. The court disagreed: “[R]obbery (only one of the worker’s four convictions) involves the use of force or a threat of force which is indicative of a propensity toward violence …. Upon discovery of a prior robbery conviction, a prospective employer would be on notice that the prospective employee had a propensity for violent behavior.”

What is the significance of this case to churches? Consider the following: (1) It indicates the importance of conducting background checks on those individuals who will be working with minors (whether in volunteer or paid positions). (2) It indicates that completing an application form may not be enough to protect a church against a charge of negligent hiring. Additional steps that can reduce a church’s risk include contacting references, current and prior employers, and other organizations in which the individual has worked with minors, to determine the person’s suitability for working with minors. In some cases, a criminal records check may be warranted. (3) The court also pointed out that in lieu of a criminal records check an employer in some cases can simply ask references, current and prior employers, and other organizations in which the individual has worked with minors, if the individual has a criminal record. Often, these sources will be aware of a criminal history. (4) Inconsistent statements on an application must be investigated. The same is true for apparently untruthful statements. (5) Churches should carefully consider questions on an application that are left unanswered, especially questions asking about prior jobs and addresses. Carlsen v. Wackenhut Corp., 868 P.2d 882 (Wash. App. Div. 2 1994).

See Also: Negligent Selection | Negligent Supervision

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