Negligent hiring: Any limits to employer liability?

May 18th, 2005 by

We read in today’s Boston Globe (registration required) that the family of Christa Worthington, a woman who was brutally murdered in her isolated Cape Cod home in 2002, has filed a $10 million wrongful death suit against her alleged killer and the trash-hauling company that employed him at the time of the slaying. We can assume that the alleged killer has no assets and that the employer carries liability insurance: one has deep pockets, one does not. At this point the employee, 33 year old Christopher McCowen, has been linked to the crime by DNA but has not yet been tried. The issue here is similar to our May 12 blog on an intoxicated employee who drove his car into another vehicle and wiped out a family. What did the employer know and when did they know it? In today’s example, was the trash hauler negligent in hiring and retaining a man with a criminal history that includes burglary, grand theft, felony assault and threats to women?
Criminal Background Checks
Not every job requires a criminal background check. Where a company’s employees routinely enter private homes (plumbers, electricians, painters, carpet installers), where there is contact with school children (bus drivers, school cafeteria workers, school volunteers), or where there is ongoing public contact (bus drivers, catering services), employers clearly have an obligation to ensure that they are hiring people who do not put their customers or the general public at risk. These employers generally request a criminal background check from a state authority. Of course, these checks usually only reveal convictions in that particular state. When criminals or predators move from state to state, they are much harder to track.
When you hire someone to haul garbage, is a criminal background check necessary? At first glance, this appears to stretch the concept of negligent hiring to the breaking point. Garbage haulers do not enter homes; they do not generally come into direct contact with the company’s customers. What makes this case a bit different is the isolation of the victim’s home — she lived in a remote part of the Cape, far from any neighbors. But does this unusual circumstance require a higher level of diligence on the part of the employer? Does McCowen’s history raise any red flags about his ability to perform this particular job without endangering others?
Chilling Effect
While the lawyers bringing this suit will have their day in court, I believe they are trying to cast too wide a net in this particular situation. I suppose on some level you could argue that virtually any job could require a background check. The public interest requires that we balance any concerns for public safety with the need to create meaningful employment opportunities for everyone, including those who have engaged in criminal activity in the past. If you categorically reject every job applicant with a criminal history, you virtually force these people to engage in new crimes. Your categorical ban has a chilling effect on their ability to earn a living. On the other hand, individuals with a history of criminal activity and violence do pose risks, and in some circumstances these risks are substantial.
What’s an employer to do? We have often stated that managing a company is comparable to building a home on the San Andreas fault. The ground is always shifting and bad things can happen if you don’t pay attention. Know your work. Know your people. Keep your eyes open. It sounds simple, but it isn’t. In the world of business, one person’s mistake becomes another’s opportunity. Prudent managers try to keep these basics firmly and constantly in mind.