HR Management & Compliance, Recruiting

Background Checks: Being Safe Is Better Than Being Sorry

If you’ve ever thought about forgoing a background check, think again. The small expense now can save you a lot in the long run.

EEOC

Rotten Apple

A perhaps underestimated part of the hiring process is the employee background check. Employers may find them unnecessary or not worth the expense. One Pizza Hut location started sweating bullets, however, when its delivery driver sexually assaulted a customer in her apartment. Maybe if the company had conducted a background check, things would be different.

MUY Pizza Houston LLC, which owned the franchised location, for whatever reason hadn’t looked into the driver’s criminal history. To the employer’s relief, nothing could be found that would have indicated the man would commit the crimes he did. As a result, all parties were found not to be negligent in their hiring and training process. The claimant was unable to show a proper screening would have put the employer on notice of the worker’s risk of harm to others.

The story would have ended very differently, however, if something had been in the driver’s criminal history and the employer had failed to find it.

Vicarious Liability

Employers may be held accountable for their employees’ tortious (or wrongful personal injury) actions under the theory of respondeat superior. The exception is when individuals aren’t acting in the course and scope of their employment (usually, for example, in cases involving assault).

There are times when an employee commits an intentional tort “in the accomplishment of a duty entrusted to the employee” rather than from personal animosity. In those cases, employers are liable to the victim on behalf of their worker. Don’t turn a blind eye when you should have known your employee posed a danger to others.

Negligent Hiring

Employers are more likely to run into issues involving assault or other violent claims in “negligent hiring” cases, which was the principle claim in the victim’s lawsuit against MUY and its parent companies, Pizza Hut Inc. and Yum Brands Inc.

As a general rule, one has no legal duty to protect another person from a third party’s criminal acts or control the latter’s conduct. When hiring an employee, however, you do have a duty to exercise reasonable care. You must ensure the individual is competent and fit for the job. Employers are negligent when:

  • They retain or supervise an employee whom they know, or should have known, is unfit or incompetent; and
  • The unfitness or incompetence creates an unreasonable risk of harm to others because of the employee’s job-related duties.

Recognize A Wolf In Wolf’s Clothing

In the spirit of best practices, you should be conducting background checks not only to stem liability but also to protect your employees, clients, customers, or patients. In MUY Pizza’s case, for instance, although a background check wouldn’t have informed the driver’s employers of his intentions or the risk of harm he posed to the public, the employee nonetheless spelled it out for them:

  • Before heading out to the victim’s apartment, the driver allegedly informed managers about his intention to sexually assault her.
  • The driver chose to invoke his Fifth Amendment right when asked if he had made statements to the managers about his intent to use his appearance and image as a Pizza Hut delivery driver to gain access to the woman’s apartment and assault her.

If your employees make such crass claims, don’t be surprised if they act on them. The statements are notice to you that the individual isn’t fit to perform the duties and poses a risk of harm to others.

In sum, conduct background checks, and if your employee makes threats, don’t assume they’re empty. It’s a risk no employer should want to take.

Jacob M. Monty is an attorney with Monty & Ramirez LLP in Houston, Texas. You can reach him at jmonty@montyramirezlaw.com.