Section 768.096, Florida Statutes, recently enacted by the Florida legislature, provides employers faced with claims of negligent hiring with a presumption that it acted properly if it performs a background investigation of a prospective employee which complies with the requirements of the statute.
In recent years, plaintiffs have sought various ways of defeating the damage caps and administrative remedy requirements associated with many of the federal and state statutory causes of action related to the employment areas. Towards that end, a trend has developed over the last several years with plaintiffs filing more and more claims under common law tort theories independently of or in conjunction with statutory causes of action.
Perhaps the most often asserted tort theory is one of negligent hiring/retention/supervision. This claim is frequently found in sexual harassment situations since the elements are similar. To bring such a claim, the plaintiff must allege that an employer knows or should have known of serious problems with an employee (such as a propensity to commit acts of violence) which indicate the employee's unfitness and the employer's failure to take action such as investigation, denial of employment discharge or reassignment. The elements may vary depending on whether the plaintiff is complaining of a negligent hiring or negligent supervision or negligent retention, but the substance is generally the same.
More specifically, the claim is usually that the employer negligently hired or retained the perpetrator of sexual harassment even after it knew or should have known of prior acts of sexual harassment by the perpetrator against the plaintiff or others. Courts in Florida do not always look upon such tort claims in a favorable fashion, but some such claims have survived. And where they do survive, they can be very costly since there is no limit on damages. In this regard, it is important to remember that employment practices liability insurance may only be marginally helpful since it does not usually cover punitive damages.
The Florida legislature recently enacted §768.096, Florida Statutes , which creates a presumption that an employer does not act negligently towards a damaged third party in its hiring practices if the employer conducts background investigations of its prospective employees and the investigations reveal nothing that would reasonably demonstrate unsuitability for the particular work to be performed. The background investigation must include:
- A criminal background investigation;
- Contacting references;
- Completion of a job application which includes questions about criminal convictions and involvement in civil actions for intentional torts where the prospective employee was a defendant;
- Obtaining written authorization from the prospective employee to check his/her drivers' license record if such a check is relevant to the work to be done; or
- Interviewing the prospective employee.
The language of the law appears to allow employers to avail themselves of any one of the foregoing in order to reap the benefits of the statute. The law, however, only took effect October 1, 1999 and has not, therefore, been interpreted by the courts. Prudent employers, however, have been and will continue to take each of the five foregoing steps to ensure the safety of its workforce and customers. As such, the requirements of the new law should not be anything new for employers. Rather, employers should see this new law as an explicit reminder of generally accepted hiring principles and good business sense and a reward for taking the necessary precautions incumbent upon the hiring of any employee.
The foregoing provides a summary of the new law. Employers should consult their employment attorneys to make sure that the criminal background checks and application forms used comply with the language of the law.