Recent revelations regarding a Washington, D.C. Metrobus driver’s criminal history are raising disturbing questions about employer’s obligations to investigate a potential employee’s criminal record, and exposure to liability if a third party is injured. A Metrobus driver, who was shot and killed by an off-duty police officer after the driver allegedly attempted to rob the officer at gunpoint, had a long and sordid criminal history.  He had been hired by Metro soon after completing a ten-year prison sentence for robbing two men at gunpoint.  Also in his criminal past – a voluntary manslaughter charge for fatally shooting a man during an argument; felony murder charges when an accomplice in an armed robbery shot a man to death; and drug and gun possession charges.  No ordinary bus driver….

An employer is exposed to liability for the tort of negligent hiring where an employee willfully injures a third party on the job, and a reasonable background investigation would have revealed the employee’s dangerous propensity.  The critical inquiry is often whether the employer knew, or should have known by conducting a reasonable investigation, that the employee was potentially dangerous.  The parameters of a reasonable investigation are highly dependent on the facts and circumstances of the case, particularly the level of access or interaction between the employee and the public.  Employers should also consider an employee’s access to vulnerable populations (including children, the elderly and disabled) and restricted areas (including homes or apartments) in considering the reasonableness of its investigations.

However, courts have been reluctant to mandate criminal background checks even where an employee will have regular access to the public.  Rather, depending on the circumstances, the employer may rely on references, past employment history and employee representations where a sufficient basis for trustworthiness exists.

In order to sufficiently navigate the pitfalls of negligent hiring and background checks, employers should always require potential employees to fill out a job application including without limitation, employment history and references.  Interviews are also a very important part of conducting a reasonable investigation as employers are afforded the opportunity to follow-up on inconsistencies, including gaps in employment.  References and prior employers may also hold key information regarding an employee’s criminal or violent history.  The most thorough criminal background checks should be performed on employees with significant exposure to the public, including vulnerable populations,[1] and access to people’s homes and apartments.

Employers have been found liable for negligent hiring where the employer lacked supporting documentation for claimed reasonable background investigations.  In order to avoid such an outcome, employers should preserve supporting documentation, including notes from interviews and conversations with references and prior employers.

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[1] Some states, including Maryland and Virginia, have statutorily mandated background checks for certain such employees, including public and/or private school employees and care workers.