Off-Premises Sexual Misconduct

Employer not liable for employees’ off-premises sexual assault.

Church Law & Tax Report

Off-Premises Sexual Misconduct

Employer not liable for employees’ off-premises sexual assault.

Key point. 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.

A federal court in Connecticut ruled that an employer could not be liable for an employee’s unforeseeable, off-premises sexual assault even though the employee’s employment application disclosed a prior conviction for statutory rape. An adult male (“Michael”) applied for a position at a FedEx Kinko’s store. On his employment application, he disclosed that he had been convicted of a felony. Specifically, he wrote: “1989 equivalent to statutory rape.” During a pre-employment interview, Michael explained that when he was 18 years old, he had been arrested after the father of his 17-year-old girlfriend learned of their sexual relationship.

After the interview, a store manager submitted Michael’s name for a background check by General Information Services (“GIS”). Pursuant to an agreement between FedEx Kinko’s and GIS, GIS searched for Michael’s felony convictions within seven years from the time of the employment application. This search did not reveal that he had a 1989 conviction for unlawful sexual contact with minor boys in the State of Maine. As a result, Michael passed the background check, and therefore, GIS rated him as suitable without further information. He was hired by FedEx Kinko’s as a production operator.

Shortly after he was hired, Michael met a female customer (Ms. Doe) and her two minor sons. He spoke with the mother about his computer skills, and gave her a calling card for his personal computer-repair services business. Ms. Doe told Michael that she needed help with her home computers and gave him her home address. She understood that his computer-repair business was unrelated to the business of FedEx Kinko’s.

During the next nine months, Michael visited the Doe home for the purpose of repairing computers for the family. He also provided some unpaid math tutoring to the two Doe sons, and offered to take them kite flying. One day, Ms. Doe left Michael alone with her two sons while she went to the grocery store. While she was out of the house, the younger son was sexually assaulted by Michael. That same day, the victim told his mother what had happened, and she immediately called the police. Michael was thereafter arrested.

Ms. Doe sued FedEx Kinko’s, alleging that it was legally responsible for Michael’s acts on the basis of negligent hiring. FedEx Kinko’s insisted that it could not be liable since Michael’s acts all occurred off of its premises and they were not related to his employment.

The court noted that “the first essential element of a negligence cause of action is the existence of a duty of care owed by a defendant.”

It noted that Restatement (Second) of Torts § 317 (a respected legal treatise) provides that an employer has no duty to control the conduct of an off-duty employee “except when the complained-of conduct occurs on the employer’s premises, utilizes property of the employer’s, or the employer knows or has reason to know that it can control the employee and recognizes the necessity of so doing.” The court noted that these exceptions “reflect that a duty may only be imposed on the employer where the harm is foreseeable and there exists the ability and necessity for the employer to control the employee.”

Ms. Doe asserted that FedEx Kinko’s had a duty because it had been informed of Michael’s previous statutory rape conviction. The court disagreed:

Despite the fact that Michael had informed FedEx Kinko’s that he had a prior conviction for conduct equivalent to statutory rape, FedEx Kinko’s could not foresee that hiring him as a production manager, a position that does not entail intimate contact with members of the public or vulnerable individuals, would gain access to a family’s home and the opportunity to sexually abuse a child. The conversation between Ms. Doe and Michael concerning his skills and her computer needs led to her hiring him and allowing him into her home. However, this communication concerned subjects extrinsic to his performance as a FedEx Kinko’s employee and could not be anticipated. Similarly, FedEx Kinko’s could not reasonably foresee that hiring Michael would lead to his interaction with the Doe children absent the presence of the parents or another supervisory adult. There is no evidence that FedEx Kinko’s should have known that it could have controlled his behavior off-site or that it should have recognized the necessity of doing so.

Application. This case is relevant for the following reasons:

First, the court concluded that FedEx Kinko’s could not be liable for Michael’s sexual misconduct on the basis of negligent hiring, despite his admission on his employment application that he had a prior statutory rape conviction, since liability based on negligent hiring requires foreseeable harm and it was not foreseeable that Michael, in his position as a production manager, would have the opportunity to molest minors.

Second, it is worth noting that FedEx Kinko’s conducted a national criminal records check on Michael that did not pick up his prior felony conviction because it only checked records within seven years of the date of the employment application. This underscores a common limitation of many criminal records searches. By only examining records for a specified number of years, they are omitting potentially relevant information that might suggest that an applicant poses a risk of harm to others. It is for this reason that church leaders should not select any criminal records search service without an understanding of all the limitations that apply. Once the limitations are known, a church can check with several other charities (the local public school district, scouting organizations, and other youth serving charities) to determine which criminal records search services they utilize, and how far back to these other services examine criminal records, and in which states? By aligning your practice to that of other reputable charities you are helping to demonstrate that you acted with reasonable care and were not negligent.

Third, the court referenced the general rule that employers cannot be legally responsible for the acts of their employees off of the employer’s premises except in limited situations. These include off-premises injuries caused by an employee utilizing employer-owned property (such as a vehicle), or those situations in which an employee poses a foreseeable risk of harm to others and the employer “has reason to know that it can control the employee and recognizes the necessity of so doing.” Doe ex rel. Doe v. Federal Exp. Corporation, 571 F.Supp.2d 330 (D. Conn. 2008).

This Recent Development first appeared in Church Law & Tax Report, March/April 2009.

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