On December 10, 2012, the U.S. Court of Appeals for the Fifth Circuit affirmed the grant of summary judgment to employers in a negligent hiring case, even though they violated their internal policies and failed to conduct a criminal background check that would have disclosed that the employee involved had a propensity for sexual violence. Keen v. Miller Environmental Group, Inc. et al., 2012 WL 6098355 (5th Cir. Dec. 10, 2012).

Relevant Facts

On April 20, 2010, the Deepwater Horizon drilling rig exploded in the Gulf of Mexico (Gulf). The explosion caused, among other things, a 152–day leak of at least 93.5 million gallons of crude oil from the Macondo well into the Gulf. As a result of the explosion, numerous sites along the Gulf Coast required emergency cleanup efforts. One of those cleanup sites was in Pascagoula, Mississippi. Miller Environmental Group (Miller), a New Jersey corporation, was a contractor at the Pascagoula cleanup site. Miller subcontracted out its staffing to Aerotek, a Virginia corporation.

On May 17, 2010, Rundy Robertson (Robertson) applied to Aerotek to be a technician at the Pascagoula cleanup site. The technician’s role was to serve as a general laborer, manually removing tar balls from the coast. Robertson had a lengthy criminal history, including convictions for (i) cruelty to a child in the first degree; (ii) robbery; and (iii) contributing to the delinquency of a minor. The third conviction had required Robertson to register as a sex offender, which he failed to do. Additionally, Robertson had previous charges for (i) simple battery; (ii) sexual battery; (iii) forcible rape; and (iv) attempted first degree murder. As part of his application, Robertson submitted a signed consent for Aerotek to conduct a background check. However, he stated in his application that he had no criminal history. Aerotek hired Robertson without conducting the background check. It assigned him to the Miller contract in Pascagoula.

Like Robertson, Deborah Keen (Keen) joined Aerotek as a technician and was also assigned to the Miller contract in Pascagoula. On June 20, 2010, Keen fell ill during the workday. Robertson, by chance, was scheduled to work only a half-day that day. He offered to drive her home after they both had clocked out of work. Upon arriving at her home, Keen alleges that Robertson forcibly raped her. A grand jury declined to indict Robertson for the alleged crime.

Keen filed suit against Miller and Aerotek in Mississippi for, among other things, negligent hiring. The district court granted summary judgment to Miller and Aerotek.

The Fifth Circuit’s Decision

On appeal, Keen argued that Mississippi law imposes a duty on employers to conduct criminal background checks, at least within the factual circumstances of this case. Second, Keen argued that Miller and Aerotek breached self-imposed duties by failing to comply with internal policies that required them to conduct background checks on all new hires. Finally, Keen relied on the report of a human resources expert and on the testimony of a corporate representative for Miller, both of which she had offered to the district court as evidence of industry practice pertaining to background checks.

According to the court, a claim for negligent hiring under Mississippi law requires “a finding of duty, breach of duty, causation and damage.” Under Mississippi law, in hiring an employee, an employer has a duty to “exercise a degree of care commensurate with [the] nature and danger of the business in which [the employer] is engaged and the nature and grade of service for which the [employee] is intended.” Whether an employer’s knowledge of an employee’s incompetency was actual or constructive, the employer “is chargeable with knowledge of the incompetency ... if by the exercise of due or reasonable care or diligence [the employer] could have ascertained such incompetence.”

Whether Mississippi law requires employers to conduct criminal background checks was an issue of first impression. However, the court observed that numerous other jurisdictions have addressed it, as has Section 213 of the Restatement (Second) of Agency, which the Mississippi Supreme Court has “expressly quoted and adopted.” The unanimous rule, with only minor and nuanced deviation, is that “(o)ne can normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation.”

According to the court, it was undisputed that Aerotek hired Robertson to work on the Miller contract to remove tar balls from the Gulf Coast. “Nothing about the nature of that work could have suggested to Aerotek or Miller that Robertson was likely to subject Keen to the risk of assault, or was otherwise uniquely incompetent to perform the work.” The court reasoned that  “(i)f a criminal background check were necessary to screen for indicia that a manual laborer might assault a co-worker, it is difficult to envision a fact pattern in which a background check would not be necessary.” The court further observed that “the unanimous caselaw from around the country says that there is no such generalized duty on employers, to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employments.”

This conclusion was strengthened by the fact that Mississippi’s legislature has mandated that employers conduct criminal background checks on all new hires within certain specified fields, such as substitute teachers and health care facility employees. “If Mississippi’s legislature intended to rely on common law principles to impose a duty on employers to conduct criminal background checks on all employees, it would not have resorted to statutes to impose them in the specified fields noted above. Similarly, by not specifying manual labor as a field requiring background checks, Mississippi’s legislature created the strong inference that it did not intend to mandate them for all new hires in that field.”

Keen next argued that Miller and Aerotek’s respective internal policies, which purportedly require background checks on all new hires, created duties that they dispositively breached by failing to comply with the policies. After surveying caselaw in Mississippi and elsewhere, the court concluded that “non-compliance with an internal policy is evidence that is probative of, but not dispositive of, breach of duty.”

Finally, Keen argued that she offered sufficient evidence to create a genuine issue of material fact as to whether Miller and Aerotek should have known of Robertson’s propensity for violence. She argued that the district court should have permitted her to present her negligent hiring claims to the jury. In support of this argument, Keen cited to the report of her human resources expert, which stated that conducting background checks on all new hires is standard corporate practice, and to the testimony of a corporate representative for Miller, who affirmed that conducting background checks is Miller’s standard practice.

The court reiterated that the existence of a duty “in a negligence case is a question of law to be determined by the court.” Thus, the expert report created no genuine issue of material fact sufficient for Keen to withstand Miller and Aerotek’s summary judgment motions. The court found the testimony of Miller’s corporate representative to be similarly unavailing. As explained above, non-compliance with an internal corporate policy or custom is evidence merely suggestive of breach of duty, not evidence dispositive of it.

For all these reasons, the court affirmed the grant of summary judgment to Miller and Aerotek.

Conclusion

Although the Keen case confirms that in most cases there is no general duty to conduct criminal background checks, for a variety of reasons, most employers consider it to be a best practice. And, in some cases it is required by law or contract.