Category Archives: Negligence

Quirky Question #218, Minnesota Ban-The-Box


We are a private employer in the State of Minnesota and are expanding rapidly.  In years past, we have received hundreds, sometimes thousands, of applications for each position advertised.  In an effort to increase efficiency in the identification of qualified candidates, as well as in preparation for an anticipated round of hiring in the New Year, we plan to update our applications for employment.  We would like to incorporate a number of new questions, including whether the applicant has a criminal history.  Are we prohibited from including this question in our application? Answer→

Quirky Question # 165, Employment Cases Before the U.S. Supreme Court


This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term? Answer→

Sexual Harassment and Negligent Hiring, Can Same Conduct Justify Two Claims, Quirky Question # 152

Quirky Question #152

One of our employees complained of sexual harassment. We investigated, though admittedly not as promptly as we should have. We discovered that the harasser had engaged in some seriously problematic conduct. Our investigation also revealed that the harasser had engaged in similar conduct at a prior employer and previously, at our company, with a different employee who had elected not to report.

The victim of the harassment is now threatening to sue us and demanding settlement compensation. Her lawyer suggests that if we do not settle, he will sue us for multiple claims, including both sexual harassment and negligent hiring. (Apparently, his investigation also revealed the past problems.) Is this legit? Can we be sued for multiple claims based on the same conduct?


Strip Search, Quirky Question # 127

Quirky Question # 127:

Our company runs fast food restaurants.  Recently, we received a call from a local police department, advising us that a patron had just had a wallet stolen during a visit to one of our restaurants.  The officer provided a description of the suspected thief, matching very closely the appearance of one of our female employees who was working at the time.

After we explained to the officer that his description appeared to identify one of our female employees, he asked to speak with her.  We had her come back to the office to participate in the phone conversation with the policeman.  Apparently, he felt that she had concealed the wallet somewhere on her person and advised her that she would have to submit to a strip search, either at the restaurant or at the police station.  She agreed to be searched in this manner at the restaurant.  The policeman gave our female store manager very explicit instructions about how the search should be conducted.

After this incident had dragged on for some time (several hours), we began getting suspicious about whether this was really legitimate.  We gave the employee her clothes back  (they had been taken into another room at the restaurant) and let her leave for the day.

She now has sued the company under a number of legal theories.  Can we be held liable?  After all, we were instructed what to do by a police officer (or at least someone we thought was a police officer).  Moreover, our employee agreed to the strip search at the restaurant, rather than going down to the police station.  What advice do you have?

Negligent Credentialing, Quirky Question # 121

Quirky Question # 121:

Our organization is responsible for evaluating the credentials for employees at certain medical facilities.  I have reason to believe that one or more of the individuals we have referred out may have been less qualified than we were led to believe.  Does that present any risks for our organization? Answer→

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? Answer→

Company Liability for Employees’ Cell Phone Use While Driving, Quirky Question # 37

Quirky Question # 37:

Our company employs a number of salespeople who spend a significant part of their time driving between customer appointments.  Our sales manager keeps track of their schedules and often calls them when he knows that they are driving between appointments, as this is a convenient time to check in with them.  Do you see any problems with this practice? Answer→

Quirky Question # 26, Background Checks

Quirky Question # 26:

We are desperately trying to hire someone for a position we have had open for far too long.  Perhaps our standards have been too high because we haven’t been able to find the right candidate.  I recently interviewed a very impressive candidate and would like to extend him an offer.  I have not been successful in tracking down some of his references.  Moreover, there appear to be a few gaps in his employment history.  My intuition tells me to slow down but I do not want to lose this applicant.  How important is it to pin down all of the relevant background information? Answer→

Racist Ideas, Quirky Question # 16

Quirky Question # 16:

I am both disappointed and embarrassed to report that one of our employees is an outspoken White Supremacist.  His views are abhorrent to me personally, as well as to nearly all of our company’s employees, both minority and non-minority.  The organization to which our employee belongs advocates violent conduct toward minorities.  Given that fact, should we take any action?  Can we fire this idiot?  (That’s my preference but I admit he has never engaged in any violent conduct in the workplace.)  If he ever engaged in any violent conduct in the workplace, as espoused by the organization to which he belongs, could the company be held liable? Answer→