Disclosing Information Regarding Past Felony, Quirky Question # 38

Quirky Question # 38:

Our company is a food retailer.  We hired a convicted sex offender, who, after serving time in prison for his felony conviction, had been released.  Given that he had “paid his debt to society,” we felt that we should not refuse to hire him because of his prior conviction.  Moreover, because the job for which he was hired involves very limited interaction with the public, we were not concerned about any risks there.

Very few employees in our organization are aware of our employee’s prior conviction and incarceration, but as the Director of Human Resources, I am knowledgeable about the employee’s felonious past.  It recently came to my attention that one of our other employees occasionally has allowed the convicted sex offender to baby-sit for her pre-teen daughter.  Do I have a legal duty to intervene?  What are the risks of intervention?  Are there any risks to non-intervention?

Dorsey’s Analysis:

Several weeks ago, I addressed the fundamental issues involved in the legal theory of “negligent hiring.” (See Quirky Question # 26, or access it by using the “View by Topic” tab at the upper right). As I explained previously, in the seminal Minnesota case on that topic, Ponticas v. K.M.S. Investments, the Minnesota Supreme Court emphasized that “an employer has a duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of their employment, may pose a threat of injury to members of the public.” As your question demonstrates, you already have given some thought to this issue. You are fully aware of the employee’s past conviction and as you note, given the employee’s limited interaction with the public, you do not feel that you are exposing the public (and, ultimately, your company) to risk on that front.

A decade after the Ponticas decision, another grim case made its way through the Minnesota judicial system that implicated analogous issues. That case, Yunker v. Honeywell, Inc., 496 N.W.2d 419 (Minn. Ct. App. 1993), involved a bizarre fact pattern. A Honeywell employee, Randy Landin, became infatuated with a co-worker. The infatuation was not reciprocated, however, and Landin responded by murdering his co-worker. Landin was convicted of the lesser offense of manslaughter and sent to prison. After serving five years in prison, he was released. (An entirely separate question, beyond the scope of this analysis, is whether five years in prison is a sufficient penalty for taking another person’s life.)

After he was released from prison, he reapplied for a custodial position at Honeywell. Like your company, Honeywell concluded that he had discharged his debt to society, and rehired him. Like your firm, Honeywell took into consideration the fact that the employee, by virtue of the position he would occupy, would have relatively little contact with the public. Honeywell apparently concluded that his past conduct would not pose a risk to other Honeywell employees or members of the public.

Unfortunately, Honeywell was wrong. Not long after he was hired, Landin became interested in another Honeywell employee, a female employee who also worked on Honeywell’s custodial staff. As had happened previously, his amorous sentiments were not reciprocated. Tragically, his response to this second “rejection” was the same as his response to the first – he murdered the co-worker who had rejected him. The co-worker’s estate sued Honeywell on multiple theories, including negligent hiring, negligent retention and negligent supervision.

The Minnesota Court of Appeals rejected the decedent’s estate’s negligent hiring theory, a decision driven largely by a public policy analysis. As the appellate court pointed out, imposing liability on Honeywell under a negligent hiring theory would “essentially hold that ex-felons are inherently dangerous and that any harmful acts they commit against persons encountered through employment will automatically be foreseeable.” The court found that such a result would “offend our civilized concept that society must make a reasonable effort to rehabilitate those who have erred . . ..” Based on this reasoning, the appellate court concluded that “public policy” supports a “limitation on this [negligent hiring] cause of action.” (For reasons not directly relevant to your situation, the Court of Appeals did find that Honeywell had “negligently retained” the employee – he had engaged in other problematic behaviors since he had been rehired – and the case was sent back to the District Court on that theory.)

Applying that precedent to your situation suggests two points, neither of which (I admit) is directly responsive to your specific questions (which I will address below). First, it would appear that your company’s decision to hire this individual should not expose your company to a negligent hiring claim. As the Yunker court emphasized, if employers are precluded from ever hiring anyone with a felonious past, those individuals will be doomed to permanent unemployment. Second, however, you will need to monitor the situation closely. If the employee you hired engaged in any conduct that you found troubling, you will need to address that situation promptly. You do not want to allow a situation to remain unremedied, especially if the context implicated any of the issues relating to his prior conviction. Disregarding this potential problem could expose your company to considerable liability.

The fact pattern you presented, however, is more subtle. You did not suggest that the employee has engaged in any problematic conduct in the workplace. Rather, you simply have learned that the employee occasionally has been asked to baby-sit for a co-worker’s pre-teen daughter. The first question you asked is whether you have a “legal duty” to intervene. In my view, you do not. A company is not obligated to apprise its entire workforce of all of the dark secrets and past problems of which it is aware regarding all of its employees. Indeed, it would be an imprudent precedent to begin doing so for multiple reasons.

The next two inter-related questions you ask (what are the risks of intervention versus non-intervention) are tougher inquiries. As to the former, the risk of intervention would seemingly revolve around a potential defamation claim by the employee who had served time in prison. I will address defamation more thoroughly in other Blog postings, but the key point you need to understand here is that truth is a complete defense to a defamation claim. In short, to the extent you share any information with the employee who has asked the former felon to babysit, you need to be accurate. Do not embellish. Do not exaggerate. Stick to the facts and then stop. Taking this approach should eliminate any potential exposure on a defamation claim.

As to the latter (the risk of non-intervention), from a legal perspective, I see little risk to your firm. Even if your employee engaged in horrific conduct and sexually assaulted your other employee’s daughter, I do not believe that your company would risk legal exposure. (This assumes, of course, that you have not made affirmative representations to your employees regarding what a terrific babysitter this employee would make.)

I have suggested in a few of my other Blog postings, however, that the legal analysis often does not end the inquiry. I suggest that you consider this issue as a parent might consider it. In this context, the greatest risk of “non-intervention” is the risk that the pre-teen daughter might be assaulted. Although the likelihood of this possibility may be miniscule, the consequences if it did occur would be traumatic. Further, if you were asking someone to babysit for your daughter, I have little doubt that you would want to know whether the individual had previously served time in prison for a sex-related offense. When considering the issue in this context, I believe the desired course of conduct is clear – pertinent information should be shared with the employee who is having the ex-felon babysit for her daughter.

You may discover that the employee himself already has shared this information and has provided sufficient reassurance to his co-worker that she has no reticence about hiring him. You may discover that she was unaware of the pertinent facts but that she is willing to use him to provide this assistance despite his prior conduct. But, you also may discover that she was unaware of the employee’s background, is troubled by it, and wants to terminate the baby-sitting activities. At the present time, you do not know which of these scenarios might apply. Once you have shared the data (and done so with the request that it remain confidential), your employee will be able to make an informed decision regarding how she wishes to proceed. And I suspect you will sleep easier at nights if a subsequent problem ever does occur.

Dorsey & Whitney

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