Conducting background checks is a necessary task that employers take on when hiring and trying to keep employees. Employers need to be aware of their rights, duties, and limitations when it comes to conducting background checks. When conducting a background check employers need to keep in mind the position that they are trying to fill, to determine the background check as well as the hiring decision based upon that background check. Edward Harbour answered negatively to the questions being asked about his criminal convictions. “Harbour had a history of convictions for violent sex-related crimes and had been arrested the year prior to his employment with B&L for aggravated sodomy of two teenage hitchhikers”(Seaquist, 2012) but yet the type of employment he was applying for was relevant, based on this B&Lfailed to look deeper into his record, it seemed as if they just wanted a driver.
The Equal Employment Opportunity Commission frowns upon automatically rejecting applicants for an arrest or conviction, especially if the past crime is not related to the job duties they are applying for. “Since such practices disproportionately prevent minorities from obtaining employment”(Logan, 2015). This will place employers in violation, “conceivably subjects employers to violate Title VII of the Civil Rights Act”(Logan, 2015). “His response to the vehicular question was verified by B&L; however, his negative answer regarding criminal convictions was not verified”(Seaquist, 2012).
Some states have different limitations or complete restrictions on criminal background checks. “B&L contends that a reasonable and prudent motor carrier could not foresee that one of its drivers would rape and assault hitchhiker”(Seaquist, 2012). With this said, I believe that B&L should be liable because they didn’t do their due diligence and verify that he was fit for the job. The application had red flags, with the violation questions being answered negatively. If a business follows does their due diligence before hiring someone, and they provide proper training, I don’t see why a business should be liable for the negligence of the employee.
Logan, K. (2015). Employee background checks. [electronic version]. Retrieved from: https://www.lexology.com/library/detail.aspx?g=adc6977f-d31a-496f-a9f2-ab10df9bd6
Seaquist, G. (2012). Business law for managers. [Electronic version]. Retrieved from: https://content.ashford.edu/books/AUBUS670.12.2/sections/sec21.2?search=hire#w130052
After reading the assigned text, it is my understanding that negligent hiring is a grey area that is circumstantial, meaning every case needs to be analyzed on a case by case basis. Negligent hiring refers to situations when employers can be held liable for the negligent actions of their employee if it can be proven that the employer should have known that the employee was a danger to begin with, and should not have been hired, but they hired the employee despite this fact. If the employer does not do proper background checks in the hiring of employees for positions that should require a background check then they could be help liable if a negligent act occurs and injury results. This was the case in the Malorney v. B&L Motor Freight, Inc case.
Businesses do not have a duty to run a background check for every new hire in every position. Duty refers to what is expected from a reasonable person in the situation. Therefore, every position and scenario would be different, and this is circumstantial. If a company is hiring an employee to work with children for example, it is expected that a reasonable person would do a background check on an employee who is going to be working with children, therefore in that situation I would say the employer has the duty to check the background of their employees before hiring them.
In the Malorney v. B&L Motor Freight, Inc case, I agree that the employer had a duty in that situation to check their employee’s criminal background. The circumstances of the employment, historical background of that type of employment, and the entrustment of their vehicle with a sleeping compartment were all reasons that the employer had, from a reasonable person point of view, to feel the need to run a background check. “In the present case, B&L did have a duty to check into Harbour’s background so as to ascertain whether he would be a fit employee” (Seaquist, 2012, section 21.2).
I fully agree that the employer should be held liable here for the negligent actions and injuries caused by those actions because they had the opportunity to prevent this situation and due to their negligence, they missed that opportunity. I think that they provided this man with, opportunity, a truck with a sleeping compartment, a position as a truck driver who will have plenty of exposure to hitchhikers. While I believe that it is very likely that he would have found a way to act had they denied him this position, they would have at least done the right thing and given him less opportunity.
Seaquist, G. (2012). Business law for managers [Electronic version]. Retrieved from https://content.ashford.edu/