Avoiding Employer Liability For The Criminal Employee
You know something most employers do not if you know that, under certain circumstances, Michigan law imposes liability upon an employer for the criminal acts of its employee. Where the employer knew or should have known that the employee had violent or criminal propensities, the employer may be held liable.
Should you grill the prospective employee regarding his or her criminal history? This may be inadvisable because Michigan civil rights statutes and Federal Equal Employment Opportunity Commission (EEOC) guidelines restrict the scope of criminal history information that an employer may use in screening prospective employees. Generally, an employer in Michigan may inquire regarding an employee's criminal convictions and may also inquire whether a prospective employee has an outstanding felony warrant. But employers may not make hiring, placement, promotion, or other employment decisions based upon an arrest which did not result in a conviction. (Such decisions by police agencies are excepted from this rule.)
We recently assisted a client with a case involving some of these issues. In our client's case, an employee assaulted a customer and the customer then sued the employer for negligent hiring, placement, and supervision. The employee had denied any criminal history on the employment application, but actually had a previous conviction for trespassing and disorderly conduct and an arrest for assault and battery.
We successfully argued that the Michigan civil rights statute prevented the employer from taking any action based upon the assault and battery arrest, even if the employer had been aware that the arrest had occurred. No other facts showed that the employer had any notice of violent propensities of the employee. The court dismissed the case, ruling that the trespassing/ disorderly conduct conviction alone was insufficient to place the employer on notice.
So what can you do to avoid such a suit, or to prevail if such a claim is filed? While there is no foolproof method to prevent the hiring of a potentially dangerous employee, there are practical strategies you can use to safeguard your work place. You may wish to consider the following:
- Tailor your investigation to the job requirements. Evidence of violent propensities is much more important in positions that require a high degree of interpersonal contact.
- Obtain and check as many employment or personal references as possible before hiring.
- Obtain a complete history. Request that applicants sign a release to obtain criminal records. Proceed with caution. The Michigan civil rights statute mentioned above prohibits making an employment decision based upon a mere arrest. Arrests without convictions may show up on the prospects criminal record.
- Document the pre-hire investigation, including criminal history requests which yield no information.
Consider using your attorney or an outside agency to perform or augment your investigations, depending on available staff resources.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.