EMPLOYER LIABILITY FOR CRIMINAL ACTS OF THEIR EMPLOYEES
Under Pennsylvania law, an employer can be held liable for the criminal acts of its employees under certain circumstances. Pennsylvania Courts have allowed claims for negligent hiring, retention and supervision of employees relating to an employee’s criminal acts while on the job. Employers must take precautions to protect themselves and their businesses from liability for their employees’ illegal acts. Accordingly, it is important for employers to know whom they are hiring and make sure they have adequate supervision in place to prevent harm to others caused by their employees.
The Restatement of Torts (Second) § 317 implies a duty on employers to supervise and control the actions of their employees. This requires an employer to exercise a duty of reasonable care to control an employee from committing harmful acts outside the scope of his employment which could intentionally harm others if: (1) the employee is on the premises of the employer or using property of the employer; and (2) the employer knew or should have known that it was necessary he exercise control over this employee. Furthermore, agency law principles further support a finding of employer liability because, under agency law a principle can be liable for the acts of his servant if the principal fails to exercise due care and the qualities of the servant make him likely to harm others during the course of his employment. See the Restatement (First) of Agency § 213.
In, McBride v. Hershey Chocolate Corp., the Superior Court of Pennsylvania considered this issue. In McBride, one employee intentionally injured another employee by dousing him with steam and hot water from a hose during the workday. The Court found there was ample evidence that the attack was based on a personal animosity between the two employees that had been building up over the years. The Court held that because the attack on the employee was personal, the Workers Compensation Act would not cover the victim’s injuries, but the Court further held that the victim could bring a civil suit against his employer to hold the employer liable for his injuries.
The McBride Court held that under Pennsylvania law, the employer has to exercise reasonable control over its employees to prevent them from intentionally harming others, if the employer knows or has reason to know of the need for that control. The Court found the employer was aware of the animosity between the employees and that the attacker had previously attempted to instigate fights with the victim, because the victim had attempted to address the situation with his supervisors numerous times prior to the attack. Accordingly, the Court found that the employer could be held liable to the victim for negligence since the employer had knowledge of the situation and failed to take any steps to prevent the harm to the victim.
Based on McBride, an employer must take steps to address aggression and the possibility of violence in the workplace, if the employer knows or has reason to suspect that that any violence and/or harm could occur.
However, this type of employer liability can extend far beyond fights that break out between employees. Recently in Doe v. Eckerd Corporation, et al., the Court of Common Pleas of Lawrence County, Pennsylvania, found that an employer could be liable to third party minor children who were molested on a construction site by the employer’s employee. In Doe, the Court found that there was enough evidence that a jury could find the employer knew or should have known that its employee was acting inappropriately with minor children because subcontractors on the construction site testified that often times children were present on the job site, and the employee would take them into his trailer. The Court found that if the employer had frequently visited and supervised the job site it would have known of the situation developing. The Court stressed the importance of employers adequately supervising their employees and job sites to protect third parties against harm caused by their employees.
Another issue in Doe that led to employer liability is that the employee in question was a registered sex offender, before he began his employment with the employer. The employee was hired on June 7, 2010 and terminated on February 2, 2011 when the employer discovered the employee was a registered sex offender. However, this information was available to the employer at the time of the employee’s hiring and could have been revealed with an adequate background check. This type of liability for criminal acts stresses the need for employers to use background checks and properly supervise their employees to protect third parties from potential harm.
In Pennsylvania, certain types of employers, such as those in the fields of education and law enforcement, are required to check the criminal backgrounds of their employees. Other employers may require a background screening of applicants for their criminal history. However, this use of criminal records by employers when making employment decisions is governed by Pennsylvania law. Pennsylvania statute 18 Pa.C.S. § 9125 expressly allows employers to use an applicant’s criminal history records for the purpose of deciding whether to hire that applicant, however, it states that felony and misdemeanor convictions may be considered by employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” (emphasis added). Additionally, under the statute, the employer must notify the applicant in writing of its decision if the decision is based on the applicant’s criminal history record. Employers must be careful to comply with these statutory requirements when using criminal history records in making hiring decisions. Additionally, it is important for employers to remember that if a charge is still pending against an applicant he is presumed innocent while the charges are pending.
Another concern that an employer must be aware of is possible discrimination claims that can arise from denying or terminating employment based upon a person’s criminal history records. While consideration of an applicant’s arrest and criminal records is not prohibited by federal law, the Equal Employment Opportunity Commission (“EEOC”) has published enforcement guidelines to help employers use this information in a non-discriminatory manner, otherwise, an employer could face liability for discrimination claims made under Title VII.
The EEOC stresses the importance of differentiating between arrest and conviction records. The EEOC warns that an arrest does not establish criminal conduct has occurred. However, following an arrest an employer may make an inquiry to determine if the conduct underlying the arrest would make the individual unfit for employment. A conviction however is sufficient to demonstrate the criminal conduct occurred. However, the EEOC is concerned with disparate impact and disparate treatment of minorities under Title VII when basing employment decisions on criminal history records. For example, a violation of Title VII can occur if an employer treats the criminal history information differently for different applicants based upon their race or religion or if the employer has a neutral policy which may disproportionately impact minority individuals protected under Title VII.
Additionally, an employer must make sure not to violate the Fair Credit Reporting Act if the employer wants to obtain an applicant or employee’s criminal history from a consumer reporting agency. Therefore, the employer must obtain permission from the applicant or employee before asking for the criminal history report, must provide a copy of the report to the applicant or employee and provide a summary of his or her rights under the Fair Credit Reporting Act before taking a negative employment action and must send the applicant or employee notices if it decides to take a negative employment action based upon the report.
There are many legal issues that may arise and leave employers liable relating to their hiring, retention and supervision of employees. Accordingly, if you wish to further consult with one of our experienced attorneys regarding these matters, please do not hesitate to contact us.
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