A federal district court judge in New Haven, Connecticut dismissed a negligent hiring lawsuit against FedEx Kinko’s, where the employer hired a self-admitted sex offender who used his position to solicit customers for his own computer repair business and molested an 8 year old boy whose family he befriended while fixing computers in their home.

The employee, Paul Sykes, admitted in a job application in 2004 that he had a 1989 criminal conviction that was the equivalent to statutory rape.  A seven year background check did not turn up the crime.  Further investigation revealed that the 1989 conviction was in fact related to sexual contact with boys.

According to a news account, Sykes was sentenced to 12 years in prison in the criminal case.

In the civil case, the plaintiff alleged that the employer either knew, or should have known,  that the employee was using Kinko’s to solicit customers for his own computer repair business,  and that the employer should not have put an admitted sex offender in a position where he could solicit business.

Among other defenses, the employer contended that the crime occurred off premises and therefore was not the responsibility of the employer.

In the ruling, the Court indicated that the employer “could not foresee that hiring Sykes as a Production Manger, a position that does not entail intimate contact with members of the public or vulnerable individuals, would gain access to a family’s home and the opportunity to sexually abuse a child.

The Court further ruled that the employer ‘could not reasonably foresee that hiring Sykes would lead to his interaction with the Doe children absent the presence of the parents or another supervisory adult.’ There is no evidence that defendants (employer) should have known that it could have controlled Sykes behavior off-site or that it should have recognized the necessity of doing so.’

The plaintiffs also argued that Sykes used the goodwill and reputation of FedEx Kinko’s to gain the trust of the family, and was aided by the fact that Sykes wore a company uniform and used the FedEx phone to contact the victim’s family.  However, the Court noted that the telephone and uniform were not directly involved in causing the sexual abuse.  Further, as a general rule, an employer is not responsible for off-duty conduct where it is not foreseeable that harm could occur, and the use of a company uniform or telephone was too attenuated to provide an exception.

According to news reports, the plaintiff has filed an appeal.  As a federal district court case, this decision has limited value as a precedent but illustrates some of the issues involved with negligent hiring.

Although lawsuits for negligent hiring are generally considered to be on the rise and statistics show that the employer loses the majority of such cases, this case illustrates one of the three major defenses that employers can assert in such a case:

  • That the perpetrator had no criminal record that could be discovered or reported, so that the lack of a background check was not the cause of the harm.
  • That the employer exercised due diligence in the hiring process, but despite reasonable efforts, a bad hire fell through the cracks.
  • That the harm was not foreseeable, or the employer’s actions or failures were too far removed from the harm to have been the proximate or legal cause of the harm.

For a copy of the federal district court decision, please contact Jared Callahan, Director of Business Development at 415-898-0044 or by e-mail at [email protected].

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