Many states and municipalities across the U.S. have enacted laws requiring the removal of criminal conviction history questions from job applications, otherwise known as the “Ban the Box” movement.
Hypothetically, this could provide individuals with criminal backgrounds the opportunity to obtain jobs for which they otherwise would not have been considered. In addition, such laws could provide additional burdens for employers and create new ways for them to face liability.
“Ban the Box” legislation is a growing if not, honorable trend, with over 30 states and 150 cities having enacted laws to remove the stigma of a past arrest or criminal record. It is important to examine the law and its potential effect on claims of negligent hiring, negligent supervision and negligent retention.
California’s “Ban the Box” legislation, which went into effect this year, amends the Fair Employment and Housing Act (FEHA) to prohibit employers with five or more employees from inquiring into, seeking the disclosure of, or considering an applicant’s criminal conviction history until after the applicant receives an offer of employment.
Before denying employment based on an applicant’s criminal history, employers are required to follow a “fair chance” process and make an assessment of whether the history has a direct relationship to the duties of the job. If a decision is made to not hire the applicant, the employer must provide written notice of its decision to disqualify the applicant based on the conviction history, in addition to other procedural steps.
Although this legislation lends itself to a more inconvenient background check process, it still is essential that employers conduct thorough background checks and decline to hire potentially dangerous applicants.
If an employer fails to do so and an employee commits an act of violence, the employer could be liable for negligent hiring, negligent retention or negligent supervision, thus facing significant monetary damages.
These negligence-type causes of action impose liability on an employer who knows that an employee creates a risk of harm and that particular harm materializes. Generally, such harm is an act of violence that was foreseeable based on the employee’s past criminal acts.
In order for the employer to be liable for negligence, the employee’s act of violence must have been “foreseeable.” While foreseeability is generally a question of fact that depends on the specific circumstances of the situation, a worker’s previous conviction for a similar act would be almost conclusive evidence the act was foreseeable.
In a recent Uber case, the court denied the company’s motion to dismiss because the Uber driver’s assault was likely foreseeable because Uber “should have known about the driver’s criminal history” because, if Uber had conducted a sufficient background check, it would have learned about the driver’s earlier assault conviction.
In Virginia, a school district was held liable for negligent hiring after failing to perform an adequate background check which would have shown an employee’s previous termination for sexual misconduct. Accordingly, if an employer fails to perform a sufficient background check, or hires an employee despite a similar past conviction, a court could possibly find the employee’s violent actions were foreseeable.
As incidents of workplace violence become more prevalent, it is increasingly likely that random acts of violence will be deemed foreseeable as a matter of law. The potential liability, not to mention the harm, associated with workplace violence is enormous.
As employers implement “Ban the Box” requirements into their hiring processes, they should remember the potential liability associated with negligent hiring, retention and supervision claims. They should ensure their protocols are not minimized just so they do not have to face the burdens imposed by this new law.
Simply put, going through the procedural hoops of rejecting some applicants when appropriate can be worthwhile, even if doing so adds time and effort to your hiring process.