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In Your Corner

Cursory background checks create presumption that businesses are not liable for negligent hiring

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In our Orlando sexual abuse law practice, we represent victims of sexual attacks – many of them children.  In most of these cases, facts come to light that make us question whether the sexual predator involved in the attack should ever have been allowed to come into contact with the victim.  Many times this comes down to a careful analysis of the sexual perpetrator’s background.

Unfortunately for victims of sexual attacks or abuse, the Florida Legislature decided almost ten years ago that businesses that generally put these deviants in direct contact with victims should be protected from liability.

In 1999, the Florida Legislature passed what is now §768.096, Florida Statutes.  This statute requires judges to presume that businesses have not been negligent in hiring employees, as long as the employer conducted a background check and the background check “did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee from the particular work to be performed.”

In order for a background check to pass muster, it must include a criminal background check through the Florida Department of Law Enforcement, making reasonable efforts to contact prior employers, requiring the prospective employee to fill out an application with questions about prior criminal charges and whether they have ever been sued for an intentional tort.

If an employer can prove that all of this was done, a judge must start his or her decision-making by presuming that there was no negligence.  The parties do not start out even at the outset.

As an Orlando sexual abuse lawyer, I believe that the steps outlined in the statute are reasonable steps that every employer who will have employees engaged with the general public should use.  However, there may be additional steps that a judge should be allowed to consider.  For example, in recent years there have been several psychological tests developed that claim to be able to predict with some degree of accuracy whether a person will have a tendency to sexually abuse a child.

If you have any questions regarding a Florida sexual abuse or attack case, call Orlando accident attorneys Kim Michael Cullen and Robert Hemphill at 407-565-7386.