Court Limits Employer's Duty to Conduct Background Checks

Last week, the Fourteenth Court of Appeals in Houston affirmed summary judgment granted by a Brazoria County trial court to a nonsubscribing employer in a lawsuit brought by an employee who was assaulted by a co-employee on the job. In summary, the Court concluded that (1) an employer does not have a duty to perform criminal background checks on employees in a position where there is no foreseeable risk of harm to others by reason of the employee's job duties, and (2) the lack of an on-site manager does not raise a fact issue as to the course-and-scope element of the doctrine of respondeat superior.

In Ramiro Najera v. Recana Solutions, LLC, 2015 WL 4985085 (Tex. App. – Houston [14^th Dist] Aug. 20, 2015), the Appellant, Mr. Najera, sued his nonsubscribing employer for negligence, gross negligence, and under the doctrine of respondeat superior. More specifically, Mr. Najera alleged that his employer, Recana Solutions, breached its duty to hire, supervise, and retain competent and nonviolent employees. Recana Solutions sought summary judgment from the trial court, alleging, in part, that Mr. Najera (1) had no evidence in support of his negligent hiring, retention, supervision, or training causes of action, and (2) was unable to establish, as a matter of law, that Recana Solutions had a duty to perform a criminal background check on the employee who assaulted Mr. Najera. The trial court granted summary judgment in favor of Recana Solutions.

On appeal, Mr. Najera first argued that Recana Solutions' failure to perform a criminal background check on the assaulting employee was evidence of negligent hiring and retention. After considering various other Texas cases in which a failure to perform background checks did and did not constitute negligent hiring or retention, the Court concluded that when there is not a situation that foreseeably creates a peculiar risk or harm to others by reason of the employment duties, no legal duty is owed beyond that of providing a competent employee. Because of this, Recana Solutions' failure to perform a background check on the assaulting employee did not constitute evidence of negligence.

Mr. Najera also attempted to argue that Recana Solutions' failure to provide an on-site manager constituted negligent supervision or training. The Court also rejected this argument, holding that absent evidence that that an on-site manager could have prevented or stopped the assault, the lack of an on-site manager at a facility does not, in itself, constitute negligent supervision or training and cannot, as a matter of law, raise a fact issue as to the course-and-scope element of the doctrine of respondeat superior.

As a general rule of thumb, employers should carefully consider the job requirements of the position for which they are hiring when determining whether to conduct a criminal background check. Courts are likely to place more scrutiny on employers who do not perform background checks for jobs involving heightened confrontation or particularly dangerous tools or weapons than on jobs involving unskilled labor or unforeseeable harm to others.