Conducting Background Checks

An employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring.

Church Law & Tax Report

Conducting Background Checks

An employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring.

Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.

* A Georgia appeals court ruled that a trial court improperly dismissed a lawsuit brought against a home security company by a woman who had been kidnapped by one of the company’s employees and who had claimed that the company was responsible for its employee’s acts on the basis of negligent hiring since it failed to conduct a criminal records check on the employee when he was hired. A home security company (the “employer”) hired a salesman (the “employee”) to sell home security systems door-to-door. The employer did not perform a background check before hiring the employee, which would have revealed that he had been convicted of burglary and kidnapping in 1979, sentenced to life in prison, and paroled in 1995. In the past, the employer required background checks on all salespersons who entered prospective buyers’ homes. However, this practice was discontinued due to the “tremendous turnover” in those positions.

A woman (the “plaintiff”) went home from work in the early afternoon to pick up medicine for her daughter. As usual, she parked in her garage and entered the house through an unlocked door, leaving the garage door up. While she was straightening up her bedroom, she noticed the employee standing in the doorway. She asked if she could help him. He responded by pulling out a gun and pointing it at her. He then bound her with duct tape, placed her in her own car, and took her to another state. He eventually released the woman when she promised to pay him $6,000.

The plaintiff sued the employer, claiming that it was responsible for its employee’s wrongful acts on the basis of negligent hiring. A trial court granted the employer’s motion for summary judgment, meaning that it concluded that reasonable minds would all agree that the employer had not been negligent and therefore there was no need to waste the court’s time with a trial. The plaintiff appealed.

A state appeals court noted that “the appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment. Stated differently, an employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s tendencies or propensities that the employee could cause the type of harm sustained by the plaintiff. Moreover, whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case.”

The court concluded that “we cannot say that the evidence adduced was sufficient to demand a finding as a matter of law that the defendant had exercised due care in screening the employee in question.”

Application. No court, in a published decision, has found a church liable for the sexual misconduct of a volunteer worker or employee as a result of a failure to conduct a criminal records check. But, cases addressing the liability of secular employers for failing to conduct criminal records checks are relevant in assessing how churches will be treated by the courts. The court in this case concluded that there was a sufficient connection between the employer’s failure to conduct a criminal records check on its employee and his kidnapping of the plaintiff to reverse the trial court’s summary judgment in favor of the employer. Note, however, that the reversal of a summary judgment only requires only the slightest evidence. The court was persuaded that the plaintiff had presented “some evidence, however slight, that the employer’s failure to perform a background check on its employee was a proximate contributing cause of her kidnapping.”

Also, note that a failure to conduct a criminal records check will be relevant in assessing an employer’s liability only if such a check would have disclosed a criminal record demonstrating a propensity to commit the type of crime in question. To illustrate, the court referred to a prior case in which a court ruled that summary judgment was appropriate since a background investigation performed on a security guard who was involved in murder of the plaintiff’s son showed that the guard had no record of criminal activity. Kelley v. Baker Protective Services, 401 S.E.2d 585 (Ga. 1991).

In summary, this court concluded that an employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring. Underberg v. Southern Alarm, Inc., 643 S.E.2d 374 (Ga. App. 2007).

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