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Liability For Negligent Hiring: Does It Affect You? |
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Specifically House Bill 706.
This Bill will amend the Civil Practice and Remedies Code as it relates to the liability of in-home service companies for negligent hiring. The new chapter will be entitled Chapter 145. The Bill would require an in-home service company to obtain criminal history record information on each officer, employee, or prospective employee whose regular job duties require or will require entry into another person’s residence. The in-home service company will be able to obtain the criminal history record check from the Department of Public Safety or a private vendor approved by the DPS.
If the in-home service company complies with the requirements of obtaining the criminal history record information on the required individual, and if the criminal history record information shows that in the last 20 years preceding the date the information was obtained that the individual had not been convicted of an offense in this state classified as (1) an offense against the person or the family; (2) an offense against property; or (3) public indecency, then it will be rebuttably presumed that the in-home service company did not act negligently in the hiring of that individual. If the individual was convicted of a similar offense in another jurisdiction, then that similar offense holds the same power as if that individual had committed the offense in Texas. The presumption in this Chapter 145 is rebuttable because the legislature did not want to allow a company to use a clear background check on an employee as a defense if the company had knowledge of the employee’s propensity for dangerous behavior.
The Bill does give a carrot stick to the in-home service company by stating that it will allow a company to send a group of employees into a client’s home if at least one of the employees has had a background check and such employee accompanies and directly supervises the other employees. However, records on the identity of the non-checked employees must be maintained by the company for a minimum of two years.
All information the in-home service company receives in regards to the criminal history record information can not be released or disclosed to any person except under a court order or with the consent of the person who is the subject of the criminal history record information request. After an individual leaves the employment of an in-home service company, such company shall be required to destroy all criminal history record information it received that relates to the individual who left the employ of such company.
If the in-home service company is thinking about hiring a prospective employee, and runs the criminal history record information as required and decides not to hire such employee, then the company must destroy that criminal history record information on that prospective employee. The company can not disclose such information to anyone except under court order or consent by such prospective employee.
This new Chapter 145 will only apply to a cause of action that accrues after September 1, 2003. Any cause of action that accrues before that date will be governed by the law in effect at the time the cause of action accrued.
Case law indicates that there is currently a cause of action for the tort of negligent hiring. In Sibley v. Kaiser Foundation Health Plan of Texas, 998, S.W.2d. 399 (Tex. App. – Texarkana 1999), the court stated that under the tort of negligent hiring and supervision, an employer who negligently hires an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee’s negligent or intentional act. Under that theory, however, the duty of the employer extends only to prevent the employee or independent contractor from causing physical harm to a third party. See Verinakis v. Medical Profiles, Inc., 987 S.W.2d. 90 (Tex. App.Houston).
In Gonzales v. Willis, 995 S.W. 2d. 729 (Tex.App.- San Antonio 1999), the court stated that although it has not found a Texas case directly on point, courts in other jurisdictions have held that an employer cannot be held liable for negligently hiring an employee unless the employee committed an actionable tort. This rule comports with the fundamental tort principle that a person is not liable for negligence, no matter how egregious, unless the negligence causes a legally compensable injury. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 30, at 165 (5th ed. 1984). Therefore, to prevail on a claim for negligent hiring, the plaintiff should be required to establish not only that the employer was negligent in hiring the employee, but also that the employee committed an actionable tort against the plaintiff.
The current Bill which creates a new Chapter 145 under the Civil Practice and Remedies Code, will make it a presumption that the employer was negligent in hiring the employee if the employer did not comply with the requirement to obtain the criminal history record information on the employee. This presumption is a lot more difficult to overcome for the employer then the hurdle created by the tort of negligent hiring.
written by Scott Brazil
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