9News recently reported that a man with two convictions for sexual assault on a child remained a team assistant for a youth football team for years after organizers learned of his criminal record. A league organizer said she was not in a position to dismiss the assistant, asking "Doesn't he have rights?"
This raises a compelling question for employers, who must balance the duty to provide a safe workplace with the rights of those who work for them.
A felony conviction for sexual assault on a child can provide a valid reason to terminate a worker or volunteer, even if there is no report of violence yet. This is especially true when the job would put the convicted felon in close proximity with children.
Employer Negligence. In Colorado an employer may be held liable for negligent hiring for injuries caused by a worker if the employer should not have hired the person in light of his dangerous propensities. The employer also can be sued for injuries caused by its negligent retention or supervision of a worker after the employer learns information that makes it foreseeable that an injury might occur. One key question is whether there is an unreasonable risk of injury. Another is whether the employer "knew or should have known" that the worker posed a risk of violence.
Cases on the Rise. These cases have touched Colorado and are on the rise nationally. In April, The Catholic Archdiocese of Denver settled a lawsuit for $300,000 after a priest was accused of sexual assault of a teenager. Last month, the Archdiocese announced a $5.5 million settlement of 18 cases of sexual abuse by three priests against young children. In Los Angeles, the Mass Transit Authority settled a negligent hiring case for $1.85 million. The lawsuit alleged that a public bus driver with a prior felony conviction sexually assaulted a 15-year old boy on the bus route, causing him serious injuries and post traumatic stress disorder.
Employer Considerations. Employers should evaluate these matters carefully. Some experts suggest that before firing a worker with a criminal record, managers should try to determine if the employee conviction involved conduct that would jeopardize the safety of others if it was repeated in the workplace. For example, it could be argued that an applicant with a child assault conviction might be hired as a welder for a construction company without raising the same safety concerns as the applicant vying for a child care or coaching job.
Employers hiring workers should consider using a detailed job description, employment application, background check, reference checks, and an interview. Depending on the job, additional investigations may be appropriate including a criminal check, drug screening or credit report.
Because the law limits the kinds of background checks that can be used, employers should be sure to understand the rules before investigating their applicants and workers. But when they do learn of violent felony convictions against children, employers should not allow child assault felons to work in positions of trust with children. If something were to happen to a child because of a negligent hiring decision, a lawsuit would be the least of their problems. For more employment law information visit Kim Ryan's website at www.lawyers.com/ryanfirm
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