Employer’s Duty to Conduct Criminal Background Checks

This fall an Appellant Court affirmed an employer’s motion for summary judgment in which it argued that it had no duty to perform a criminal background check on a employee who attacked a co-worker.

In Najera v. Recana Solutions, LLC, the plaintiff filed a negligence claim against its employer, a temporary staffing agency, after the plaintiff was assaulted by a co-worker during their shift as laborers at a rice mill. The co-worker attacked the plaintiff and caused injuries to the plaintiff’s shoulder and teeth after the plaintiff informed the co-worker that they had to work late. Among other claims, under the doctrine of respondent superior, the Plaintiff alleged that the staffing company breached its duty to hire, supervise, train and retain nonviolent employees by not conducting a criminal background check on the assaulting employee.

Although the assaulting employee indicated that he was not a convicted felon in his initial job application, his criminal record included misdemeanor convictions for possession of a controlled substance, DWI and assault. The staffing company did not conduct a criminal background check during the hiring process. The staffing company moved for summary judgment and the trial court granted the motion. The Plaintiff appealed.

Generally, an employer is liable if it hires, retains or supervises an employee whom it either knows or should have known was not competent or fit for the job and whose incompetence or unfitness creates an unreasonable risk of harm to others because of the employee’s job related duties. On appeal, the Court stated that each decision is based on facts surrounding the occurrence in question.  In its determination on whether the staffing company had a duty to conduct a criminal background check on the assaulting employee, the Court considered the following factors: (1) the risk involved; (2) foreseeability of the risk; (3) likelihood of injury; and (4) the social utility of the actor’s conduct and the magnitude of the burden of the defendant.

Ultimately, the Court affirmed the trial court’s decision to grant summary judgment because the plaintiff’s job as a laborer did not require any special or unique skills or experience, and did not involve circumstances of heightened confrontation or dangerous tools or weapons and, thus, was not a situation that created a foreseeable risk of harm to others.  In addition to the lack of foreseeability, the Court relied on a public policy argument that performing criminal background checks on every unskilled worker places a significant burden and costs. 

For employers, determining whether to conduct background checks should be based on the job requirements the position demands and the nature of the employer’s business. Court’s are more likely to impose a duty to perform a criminal background check on employer’s who hire individuals whose positions involve situations of heightened confrontation or particularly dangerous tools or weapons.

Whether you are considering the implementation of background checks, structuring job requirements for new positions, or already engaged in litigation, Owen & Fazio can help. Contact us today at (214) 891-5960 to learn how our experienced attorneys can help protect your interests.

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