Academic journal article
By Sullivan, Dermot
St. John's Law Review , Vol. 72, No. 2
In recent years, violence has become a major concern in the American workplace.l All too often, we hear reports of employees "snapping" and assaulting co-workers and members of the public.2 To help reduce this problem, New York recognizes the negligent hiring cause of action.3 In this proceeding, an employer
may be found liable for harmful acts committed by an employee if the employer knew, or should have known, of the employee's predisposition for such behavior.4 While liability is most often based on the employer's actual knowledge of an employee's harmful predispositions, employers in New York have no duty to acquire such knowledge by investigating the criminal records of job applicants.5 This remains true, despite the fact that over forty-five percent of released felons are convicted again within three years.6
To promote public safety, this Note proposes that employers be required to ascertain the criminal histories of job applicants so as to reveal any proclivity for violence. Such a requirement, however, would impose a significant burden on the business community.7 As a concession, a cap on damages in negligent hiring cases involving ex-offenders should be set to protect employers from unlimited liability. Additionally, smaller employers should be exempt from complying with the plan.
Part I of this Note discusses the menace of violence in the workplace. Part II considers the relevance of recidivism rates as indicative of the likelihood that an individual will commit a crime. Part III reviews New York's current requirements for employer liability under the negligent hiring theory. Part IV examines the New York statutes that restrict an employer's ability to use criminal records in the hiring process. Finally, Part V proposes a plan requiring certain employers to investigate the criminal histories of job applicants.
I. WORKPLACE VIOLENCE
In July 1997, a short-order cook was scolded in public by a waitress for preparing a dish that was not on the menu.8 The following day, the cook shot the waitress four times as she lay huddled on the floor.9 In February 1993, a janitor did not receive his $150 paycheck on time. When told that the bookkeeper could not see him, he burst into her office, poured gasoline on her, and set her on fire; she died hours later.10 In February 1988, Richard Farley was fired from his job as a computer programmer for harassing a female co-worker.ll A few days later, he returned and began a shooting spree that left seven co-workers dead and three wounded.l2 In April 1986, a California state worker shot his supervisor and then turned the gun on himself.13 The gunman left behind a note: "'I hope this will alleviate a lot of stress from my co-workers and set them free.' "14 More recently, in March 1998, a disgruntled Connecticut lottery employee shot himself and three other high level executives.l5
In the American workplace, murder is the third largest cause overall of on-the-job death,16 and the leading cause of onthe-job death for women.l7 Co-workers and former co-workers commit fourteen percent of all workplace violence,18 accounting for nearly fifteen hundred violent assaults each year.l9 Further, between 1992 and 1996, three hundred and thirty-six people were murdered by co-workers or former co-workers.20 Some researchers believe that statistics understate the actual number of violent attacks and threats that occur in the workplace because victims may fear retaliation for coming forward.21
II. EX-OFFENDER RECIDIVISM
A criminal history can be an accurate prognosticator of an individual's likelihood to commit a crime. In the most recent large-scale study of its kind, the Bureau of Justice Statistics tracked the recidivism of sixteen thousand prisoners released in 1983. 22 Within three years, sixty-two percent were re-arrested23 and forty-six percent were re-convicted.24 Of the violent felons25 released, fifty-nine percent were re-arrested and thirty-six percent were re-convicted within the same period. …