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Is It OK to Skip Background Checks in a Tight Labor Market?

By Tim Murphy - Skoler, Abbott & Presser, P.C.

June 30, 2020

No, it really isn’t. We get that it is hard to find good help. And we understand that the success of your organization depends on having the people to do what needs to be done when it needs to be done. But there are so many things that can go wrong when short cuts are taken in your hiring process. (Although in the case I’m about to tell you about the employer dodged the legal bullet…just barely.)

Robert Koontz stalked, attacked, and sexually assaulted a woman in Quincy, Massachusetts late one night as she walked home from work. Although off-duty at the time, Koontz was in Quincy on an overnight job assignment for his Ohio-based moving company employer (the “Company”). The Company had hired Koontz as a truck helper although he had an extensive history of violent criminal conduct and substance abuse. His substance abuse history rendered him ineligible for a drivers’ license.

The Company had a policy requiring background screens as part of its hiring process.  It didn’t do one for Koontz. In fact, as a practice, it didn’t conduct background checks on any of the truck helpers it hired because a majority of them couldn’t pass them. Had the Company conducted a background screen on Koontz it would have been clear that he did not meet the Company’s established standards.

On the night in question, Koontz got drunk and high and was driving around in a company-provided vehicle when he first saw his victim. He followed her in the vehicle for a while. Ultimately, he parked the vehicle a quarter mile away from where he accosted the victim on foot. He dragged her into a wooded area. Fortunately, her screams were heard. Koontz fled when he heard police sirens. Koontz was apprehended and later convicted on several serious criminal charges.

The victim sued the Company. The issue was whether the Company was legally responsible for the harm Koontz caused to the victim because it was negligent in hiring him. The case wound its way up to our state’s highest court, the Supreme Judicial Court (“SJC”).

The SJC ruled in favor of the Company concluding that its negligence in not doing the background screens on Koontz was not the legal cause of the victim’s harm. It reasoned that Koontz’s criminal acts, committed while he was off duty, against a person with whom the Company had no relationship, was not a sufficiently foreseeable result of the hiring of Koontz or its decision to allow him to drive a truck as part of the move to which he was assigned.

The SJC’s decision was not unanimous. One judge dissented because she believed that the Company was negligent by providing the vehicle to Koontz which facilitated his attack on the victim.

Bottom Line: This high stakes case could easily have gone the other way for the Company and put it out of business. For instance, if Koontz attacked the victim in the vehicle, had he parked the vehicle closer to where he assaulted her, or if he was on duty at the time, you could see the court reaching the opposite conclusion. This case illustrates just one potential legal catastrophe that can come from failing to follow your own background check policies. Some short cuts just aren’t worth taking.

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