The ramifications of Megan's Law on negligent hiring claims
A car salesman sexually assaulted a young woman while accompanying her on a test drive. The salesman had been charged three years earlier for both first degree burglary and first degree sexual offense.
Although the car dealership had asked this employee about previous convictions on an application form, it did not conduct a criminal background check on him and was ignorant of his past crimes.
The victim filed a lawsuit against the dealership claiming, among other things, that it was liable for her emotional distress because of the dealership’s negligent hiring of the salesman.
In essence, the plaintiff claimed that the employer failed to exercise reasonable care in selecting its employee, and that based on the employee’s past conviction, the employer should have known about his propensity for sexual assault.
Stanley v. Brooks.
Ruling on this case in 1993, a North Carolina appellate court found in favor of the dealership. The court reasoned that despite the fact that the employer did not conduct a criminal record check, there was no evidence to suggest that the employer had failed to exercise due care in hiring this particular employee.
North Carolina, like many states, does not impose a duty on employers to check the criminal records of potential employees. The rationale behind this rule is that it would be unduly burdensome to require employers to check criminal records as it may be too costly in terms of time and resources.
In light of new laws, however, if the facts of this North Carolina case were presented in a court today, the result might be different.
Megan’s Law
Signed into law by President Clinton in 1996, Megan’s Law requires that states register individuals convicted of sex crimes and disclose certain information about such offenders to the public. Although the registration and disclosure rules vary from state to state, the majority of the states maintain websites that allow people to freely look up individuals by name and location. For instance, in California, with a click of a mouse you can discover such information as the name and address of the offender, view a picture and learn about the type of offense that led to the particular offender’s conviction. Recent shocking events in the news have shown that convicted sex offenders pose a risk of reoffending after they re-enter society; the primary purpose of Megan’s Law is to protect children and the community in general from those individuals.
Megan’s Law, however, has other far reaching ramifications which can affect you as an employer. While there is a societal benefit in employing ex-convicts and assisting their re-integration into society, employers have reason to be concerned with how Megan’s Law could affect their liability should they hire a registered sex offender. Surprisingly, there is still very little case law discussing Megan’s Law in the context of employment litigation.
Negligent Hiring Claims
In several states, an employer breaches its duty of care in terms of negligent hiring when the employer knows, or should know, facts that would warn a reasonable person that the particular employee presents an undue risk of harm to third persons in light of the particular work to be performed.
As for sex offenders in particular, you may be liable for negligent hiring where there is a link between the employee’s job responsibility and the offender’s previous assaults. Simply put, liability may arise where the The Ramifications Of Megan’s Law employee is hired to work in a setting where he or she comes into contact with people similar to those that he or she previously assaulted, or where the employee’s job duties could facilitate or enable the employee in the commission of another similar crime.
On Negligent Hiring Claims where he or she comes into contact with people similar to those that he or she previously assaulted, or where the employee’s job duties could facilitate or enable the employee in the commission of another similar crime.
The results of the few cases dealing with registered sex offenders and negligent hiring claims appear to turn on the issue of foreseeability.
In other words, employer liability depends on whether the employer could have reasonably predicted an assault to be likely, taking into account the employee’s job duties and the facts of the employee’s past crimes.
A Tragic Case
For example, in 1999, a Washington Appellate court decided Betty Y. v. Al-Hellou. The court in that case declined to find an employer liable fo negligent hiring where the employer knew that the employee was on probation for sexually assaulting a child in another state. The employee, who was hired to rehabilitate vacant apartments, subsequently raped a fourteen year old boy who lived on the same block of the employee’s worksite.
The court reasoned that employer liability was improper because the employee was not hired to work with potential victims, the rape did not occur on the work premises, and the employee’s job duties neither facilitated nor enabled the attack. Although it was possible that the employee could have had incidental contact with tenants or children of tenants, the fact that the contact between the employee and the victim occurred on the work premises was fortuitous - it could have just as easily occurred in any other public place in the area.
Uncertainties In The Law
The cases to date that address the issue of registered sex offenders and negligent hiring claims all deal with instances where the employee assaulted a third party, such as a customer. It is unclear what the result would be in a case where a registered sex offender attacks a co-worker or even where the registered sex offender merely sexually harasses a coworker.
In such a case, would the court, with the clarity of hindsight, determine that the actions of the registered sex offender were foreseeable or reasonably predictable given that the employee had such a past history?
Finally, based on the current case law, it is uncertain what effect Megan’s Law has on an employer’s duty to research the criminal background of a potential employee. Given the ease of access to information under Megan’s Law, the argument that it is too burdensome to require employers to conduct criminal background checks may no longer holdwater, especially in those states that maintain registered sex offender websites.
So what is an employer to do?
Because the law in this area is still developing, there is no quick answer and each case will likely turn on the individual facts at hand.
If you discover that one of your employees is, in fact, a registered sex offender, the best approach is to contact your employment lawyer and discuss the issue in detail. Presently, there is no law or court opinion stating that an employer has a duty to look up potential or current employees on the state sex offender websites.
But because Megan’s Law is still relatively new, especially in the realm of employment law, this may change. Nevertheless, as a general rule, when hiring employees you should always be sure to conduct a thorough background check to avoid, among other things, negligent hiring claims.
Dealer Update
FISHER & PHILLIPS LLP attorneys at law
The Dealer Update is a periodic publication of Fisher & Phillips LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have. Fisher & Phillips LLP lawyers are available for presentations on a wide variety of labor and employment topics.
©2005 Fisher & Phillips LLP
Sharon Ongerth is an associate in the Irvine office. She can be reached by telephone at (949) 851-2424 or via e-mail at songerth@laborlawyers.com.