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On a warm summer night, a few customers cluster around a beach club’s relaxed bar, listening to a steel band and served by a bartender in a stunning white tuxedo. The idyllic scene is shattered when the bartender draws a gun and shoots one of the patrons, seriously wounding him. Questioned later, the bartender calmly explains that the patron deserved to die because he had said the drinks were too small. It turns out that the bartender had an extensive criminal record.
The injured patron sues not only the bartender, but also the bar owner, claiming that the owner negligently hired and retained the bartender, whom the owner should have known might commit violent acts against customers. Will the patron’s claim against the bar owner succeed? As usual in the law, it depends.
An employer whose employees have contact with the public has a duty to exercise care in the selection of employees. Foster v. Loft, 26 Mass. App. Ct. 289, 291 (1988). An employer who fails to use the required care may be liable for negligent hiring or negligent retention if an employee injures a customer or other third party. Id. The employer will be liable if he or she takes a risk with respect to a third person’s safety that a reasonable person would not have taken and, as a result, the third person suffers an injury which is reasonably foreseeable. Id.
Thus, a negligent hiring or retention claim raises four critical questions: (1) what facts about the employee were known to the employer or were reasonably available to the employer; (2) on the basis of facts known to the employer, was it foreseeable that harm would come to third parties such as the employer’s customers; (3) would a reasonable person have acted differently than the employer did; and (4) would those steps that a reasonable person would have taken have prevented the harm from occurring.
The liability of the bar owner in our hypothetical will depend in large part on whether the owner knew of the bartender’s criminal record. Although the injured patron might claim that the owner should have checked the bartender’s criminal record before hiring him, that is not the law of Massachusetts. With the exception of a few kinds of jobs, the general rule is that an employer has no duty to perform a criminal background check of a prospective employee, even when that employee will be dealing with the public. Thus, if the owner did not know of the bartender’s criminal record, the negligent hiring and negligent retention claims will probably fail (assuming that no other circumstances existed that would have made the owner aware of the danger).
The situation is more complex if the owner knew of the bartender’s criminal past. Whether an employer has acted negligently in hiring or retaining an employee depends on all of the surrounding circumstances. Where an employer knows a current or prospective employee has a criminal record, the employer “has a duty to investigate, within the limits of the law, any potential risk the employee may pose to third parties.” Or v. Edwards, 2001 WL 35937280 (Mass. Super. 5/23/01).
However, the fact that an employer is aware that a current or prospective employee has a criminal records does not, by itself, establish that the employer negligently hired or retained the employee. In Foster, the Court explained:
For us to hold that an employer can never hire a person with a criminal record or retain such a person as its employee at risk of being held liable for his tortuous assault flies in the face of the premise that society must make a reasonable effort to rehabilitate those who have gone astray.
While not dispositive, the fact that an employee has a criminal record is one important factor an employer must take into account. The reasonableness of the employer’s conduct depends on the nature of the criminal record and the type of job involved, among other things. In Foster, the Appeals Court affirmed a jury verdict holding the owner of a bar liable for negligently retaining a bartender despite knowledge that the bartender had a record of violent crimes. The Court pointed out that the nature of the criminal record, combined with the volatile atmosphere in which the employee would be working (one with a high potential for violent confrontations), made it unreasonable (and therefore negligent) to retain the bartender.
Notably, the fact that an employee has been released from prison on probation or parole can operate to shield the employer from liability for negligent hiring or retention if the employee harms a third party. In Coughlin v. Titus & Bean Graphics, Inc., 54 Mass. App. Ct. 633 (2002), the Court, noting that checking the employee’s criminal record would have revealed that the employee had been released on parole, stated:
Although Titus & Bean could make no predictions as to the future, it would not have been unreasonable for Titus & Bean to rely on the judgment of those professionals who had the most knowledge of Kelley’s recent behavior.
The Court continued:
A layperson, acting reasonably, need not anticipate danger from a person who has been released on probation or parole from a penal institution. The very fact of being placed on probation or parole imports a professional judgment by trained penal and medical personnel that the probationer or parolee does not represent a risk to society outside prison walls.
Id. at 640 n.10. See also Doe v. Foot Locker Corporate Services, Inc., 2008 WL 5467610, *9 (Mass. Super. 4/3/08).
In our hypothetical in which the bartender shot the complaining customer, if the owner was aware that the bartender had a criminal record, the owner’s liability may depend on the nature of the bartender’s past crimes and, perhaps, on whether he was paroled or on probation. Knowing that the bartender had a criminal record, the owner should have made some investigation to determine the nature of that record. However, the owner’s failure to investigate is immaterial if it would have been reasonable to hire the bartender even knowing the nature of his past crimes. In our hypothetical, the place of employment was a relaxed environment, in contrast to the volatile atmosphere in Foster. Thus, even if the bartender’s criminal record included violent crimes, it might not be unreasonable for the bar owner to employ him. Any other relevant circumstances known to the owner must also be taken into account. Further, if the bartender was paroled or released on probation, the owner could argue that he reasonably relied on the professional judgment, implicit in parole or probation decisions, that the bartender posed no risk to society.
In sum, an employer is only required to act reasonably. The employer is usually not required to run a criminal background check on current or prospective employees but, once aware of an employee’s criminal record, should investigate to determine the risk to third persons with whom the employee will foreseeable have contact. Even a violent criminal record is just one of the factors an employer should consider in determining whether to hire or retain an employee.
