Checklist to Prevent Employer Liability for Improper Background Checks

The following is fully attributed to +Rick Norman for  the excellent outline of the legal issues of properly conducting background check of prospective employees.

An employer who hires an unacceptable employee may suffer losses because of the employee's inefficiency or because of the damage caused by the employee for which the employer is responsible. A background check may screen out problematical employees and, under R.S. 23:291(D), may afford the employer immunity from liability.

a. Employer Liability for Negligent Hiring or Negligent Retention

An employer is generally not liable for the intentional tort of its employee unless the employee is acting within the ambit of his assigned duties and in furtherance of the employer's objectives. (Baumeister v. Plunkett, 673 So.2d 994 (La.1996) However, even in situations where the employer is not vicariously liable for the torts of its employees, it may be directly liable under the theory of negligent hiring and/or retention. (Roberts v. Benoit, 605 So.2d 1032 (La.1991) on rehearing; Jackson v. Ferrand, 658 So.2d 691 (La.App. 4th Cir.1994); Bohmfalk v. City of New Orleans, 628 So.2d 1143 (La.App. 4th Cir.1993); Williams v. Butler, 577 So.2d 1113 (La.App. 1st Cir.1991).

Louisiana recognizes claims against an employer that hires an employee with dangerous propensities who injures third persons at work. An employer may be liable for negligent hiring if it knew or should have known that the employee posed a threat to others. Similarly, an employer is liable for negligent retention when it continues to employ an employee knowing his dangerous propensities.

When the employer hires an employee who will have a unique opportunity to commit a crime in the performance of his duties, the employer has a duty to exercise reasonable care in hiring the employee, and a continuing duty to exercise reasonable care in retaining the employee. (Smith v. Orkin Exterminating Company, Inc., 540 So.2d 363 (La.App. 1st Cir.1989).

Louisiana courts have found the employer to have breached its duty when it failed to adequately inquire about the employee's criminal history. (Lou–Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir.1973); Williams v. Butler, 577 So.2d 1113 (La.App. 1st Cir.1991); Smith v. Orkin Exterminating Company, Inc., 540 So.2d 363 (La.App. 1st Cir.1989). However, the employer is not negligent where it conducts a reasonable background investigation and where the wrong committed was not foreseeable based on the nature of any previous criminal conduct by the employee. (Lou–Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir.1973

To prove negligent hiring, the injured third person must prove:

a duty owed by the employer in selecting or retaining the employee

a breach of the duty


cause in-fact (The duty to properly hire and retain the employee must be the cause-in-fact of the injury)

Smith v. Orkin Exterminating Company, Inc., 540 So.2d 363 (La.App. 1st Cir.1989). In the context of the tort of negligent hiring/retention, Louisiana courts generally have not cited the requirement of C.C. art. 2320 that, to be liable, the employer must have been in a position to prevent the crime, perhaps relying on the later R.S. 9:3921

scope of liability; and

damages

The injured third party must also prove that, although negligent in hiring or retention, the employer's negligence makes it liable for the intentional tort actually committed by its employee. For example, the failure of the employer to discover that its employee had a conviction for stealing welfare checks does not extend to the employee's crime of arson.  Similarly, failure to discover that the employee pleaded guilty to theft does not extend to rape.

Unfortunately, R.S. 23:291(B), which provides immunity to prospective employers unless “further investigation, including but not limited to a criminal background check is required by law,” does not specify the requiring law to which it refers. The language, however, suggests that “law” refers to a specific statutory requirement to conduct a criminal background check.

To determine the nature and extent of the background check, the employer should review the written job description for the position in question and consider the potential harm that could result if a violent employee were in that position. In Smith v. Orkin Exterminating Company, Inc., an exterminating service was held vicariously liable for the sexual assault of its employee. Although the exterminating service conducted annual polygraph tests, only six questions were directed towards protecting the customer while sixty-eight were aimed at protecting the employer.

b. Employee Consent

All background checks should be preceded by a written consent signed by the prospective employee. R.S. 23:291(D) provides that an employer that conducts a background check of an employee or prospective employee after having obtained his written consent is immune from civil liability for all claims arising out of the disclosure of the background information. The immunity extends to liability for failure to hire, wrongful termination, invasion of privacy, as well as to claims of third persons for negligent hiring or negligent retention. Consequently, employers should capitalized on the broad immunity accorded by R.S. 23:291(D) and obtain a consent to background check from all employees and prospective employees and conduct and document a background check for each, regardless of how cursory.

c. Checklist for Conducting Background Check

The employer conducting a background check  should:

1.  Obtain written consent of employee
2. Check the employment application for blanks and obtain missing information
3. Check the employment history for periods unaccounted for and obtain the missing information
4. Check listed references
5. Inquire of all previous employers
6. Inquire about criminal convictions, not arrests
7. If the job description includes driving, obtain a copy of the prospective employee's driving record; and document all inquiries and results.

I hope this helps you in the proper means of conducting background checks under Louisiana's laws. Of course, we all know the Department of Transportation has even more stringent guidelines that must be followed, but for the general employer, this should help

If you need more specific assistance, feel free to call day or night. You can check out the firm's website at www.perkinsfirm.com and my personal blog site at www.perkinsfirm.blogspot.com .

Take care,

Mark Perkins
#trucking, #employer, #backgroundcheck