Imagine you receive the following phone call from a trial attorney: The police have arrested your company's delivery service employee. Apparently, your employee returned to an apartment where he previously delivered your company's products to a customer, attacked the customer with a knife and threatened to kill her. Although your employee committed this crime outside of working hours, the attorney, who is representing the customer, informs you that he will be suing your company on her behalf. You check the employee's personnel file and discover that the employee was hired without filling out an application. Nor did your company request any references or run a criminal background check on the employee.

The scenario above is not simply a hypothetical situation. These are the facts that gave rise to Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744 (Fla. Dist. Ct. App. 1991), a case where a Floridian furniture company was found liable when its delivery service employee attacked a customer in her apartment.

Tallahassee Furniture was found liable to the customer under a theory known as negligent hire. Under this theory, an employer may be liable for the any harm its employee causes to either members of the general public that her or she is likely encounter during the course employment or the employer's own current employees if the employer knew or should have known the employee was likely to cause such harm at the time of his or her hire.

Other states recognize claims of negligent hire. See Welsh Manufacturing v. Pinkerton's, Inc., (474 A.2d 436 (R.I., 1984) (Rhode Island state supreme court found security service defendant liable where it's security guard assisted in theft of plaintiff's gold and defendant's background check of the guard failed to include any attempt to solicit statements regarding the guard's reliability and trustworthiness); McLean v. Kirby Co., 490 N. W. 2d 229 (N.D. 1992) (North Dakota state supreme court found employer liable where it failed to perform background checks on its home demonstration sales employees and one such employee with a history of two assault convictions and two weapons charges sexually assaulted a customer); Read v. The Scott Fertilizer Co., 990 S.W. 2d 732 (Tex. 1998) (Texas state supreme court found employer liable to customer who was raped by door-to-door salesman even though salesman operated as independent contractor. The court reasoned that the employer had a duty to select its independent contractors with reasonable care).

Fortunately for Florida employers, Florida law sets forth the steps that employers can take to raise a defense to claims of negligent hire. Specifically, Florida law (Fla. Stat. 768.096) provides that an employer will be presumed not to have been negligent in hiring an employee who harms a member of the general public or a co-worker if the employer conducted a background check on the prospective employee that did not reveal any information that would have shown the employee presented a risk.

Such a background check must include the following:

• A criminal background check of the prospective employee;
• A reasonable effort to contact the prospective employee's references and former employers regarding the prospective employee's suitability for the job;
• An interview of the prospective employee;
• A review of the prospective employee's driving record (with the written authorization for such a review from the prospective employee) if such a check is relevant to the type of work the prospective employee will be performing (i.e., driving a company vehicle); and
• A requirement that a prospective employee complete an application that includes questions as to whether her or she has ever been convicted of a crime and whether he or she has ever been a defendant in a civil suit for intentional wrong doing. If the prospective employee indicates he or she has been convicted of a crime or was a defendant in a civil suit, the application should also request details concerning the type of, penalty for, and date of conviction for any crime and details regarding the disposition of any civil suit.

In order to satisfy Fla. Stat. 768.096's criminal background investigation requirement, employers must request and obtain a criminal background check from the Florida Department of Law Enforcement as that information is reported and reflected in the Florida Crime Information Center system.

By taking the steps provided by Florida law, Florida employers can protect their customers and existing employees from harm from potentially dangerous and unsuitable prospective employees as well as protect themselves from being held financially liable under a negligent hire claim.