The Recruiter’s Liability for Wrongful Hiring: Injury to the Candidate, Part 2

Apr 27, 2010

Today’s article continues with five more examples of injury TO the candidate, and tomorrow we start a 2-part series on injury BY the candidate.

3. Intentional Infliction of Emotional Distress

No negligence here — you have to show the conduct was intentional — “outrageous.” In fact, some states call the tort outrage.

It’s not difficult for courts to find this in the supervisor-subordinate relationship. Men brutalizing women, whites enslaving blacks, and survival of the fittest as the law of the jungle.

The Restatement of Torts is the model for legal analysis in this area. Its official comments specifically note that abusive conduct by supervisors is likely to be considered “outrageous.” In such cases, the resulting distress may be inferred. [Rest. of Torts 2d 46(e),(f),(j)]

Liability for recruiters is vicarious (indirect) here, unless it can be tied to misrepresentation or conspiracy (Item 1).

The candidate is placed, then the employer springs a lie-detector test, for example.

It’s a good example, too. A pharmacy employee who refused a polygraph pursuant to a Maryland statute was fired. The jury returned a $1.3 million verdict ($1 million in punitives) and the Court of Special Appeals affirmed. (Moniodis v. Cook, 64Md.App. 1, 494 A.2d 212 cert den. 304 Md. 631, 500 A.2d 649, 1IER 441).

And what about a candidate who consents to a lie-detector then suffers nightmares 16 months later? In Minnesota, a jury said it was worth almost $l00,000. The Court of Appeals agreed. (Kamrath v. Suburban Nat’l Bank, 363 N.W.2d 108).

Signed releases don’t help here either, because the “consent” is really not consent to the test — it’s consent to keeping the job. The Pennsylvania Superior Court decided that one. (Liebowitz v. H.A. Winston Co., 342 Pa.Super. 456, 493 A.2d 111).

We’re getting close to the day when referring a candidate to a job for which he is unqualified may also be deemed “outrageous.” A union in California referred a member to less desirable jobs because its officials disagreed with him on policy matters. The jury awarded him $182,500 (including $l75,000 punitives), and the case shot up to the U.S. Supreme Court on procedural grounds. The Supremes said the outrageous conduct was of such substantial and enduring quality that “no reasonable man in a civilized society should be expected to endure it.” (Farmer v. United Bhd. Of Carpenters, 430 U.S. 290, 94 LRRM 2759).

4. Assault and Battery

Battery is the intentional contact with another’s body without his consent. Assault is intentionally placing another in apprehension (fear) of the contact by some overt act. Merely using threatening words is insufficient to constitute an assault; they help, but there must be some threatening physical movement.

The three major areas of concern are drug testing, polygraph testing, and sexual harassment.

In the drug and polygraph testing areas, the arguments are usually that needles, probes, wires, pressure cuffs, suction cups, electronic contraptions, or other instruments caused the employee fear (assault), and that the actual contact with him was without his consent (battery). The “harmful” requirement (necessary in some states) is easily satisfied by the fact that shots are painful, EKGs use electrical current, etc.

A Texas case concerning two employees who sued their employer for requiring blood and urine specimens for drug testing could have easily resulted in “affirmation” by the U.S. Court of Appeals. The court ruled that since they were union employees, the grievance procedure had to be used instead of the court system. Next time, the employer and recruiter might not be so fortunate. (Strachan v. Union Oil Co., 768 F.2d 703, 1 EIR 1844).

As mentioned with regard to reference checking (Item 2), “releases” by employees are often considered insufficient to prove consent: You can’t consent if you don’t have a choice.

A polygraph case involving this issue arose recently in Pennsylvania. There, the U.S. Court of Appeals found that a bus company employee (also in a union, incidentally) presented a “triable issue of the fact” as to whether the release was valid. If it wasn’t (and therefore no consent existed), an action for assault and battery was proper. (Smith v. Greyhound Lines, Inc., 614 F.Supp. 558 aff’d. 800 F.2d 1139).

You can readily see how sexual harassment fits right into the traditional common law assault and battery theories. Almost anything qualifies if the employee is offended and touched.

One of the examples of the games supervisors play resulted in the Georgia Court of Appeals decision in Newsome v. Cooper-Wiss, Inc., 179 Ga.App. 670, 347 S.E.2d 619. A secretary alleged her male boss made lewd comments to her and “made a practice of touching her and rubbing up against her in the office.” She complained to the personnel manager and was fired within a month. Since the harasser wasn’t fired, the court found that the employer ratified (impliedly accepted) the supervisor’s conduct.

The employer was therefore held liable.

Of course, supervisors can get a lot more physical than just touching and rubbing, sexually or otherwise. The recruiter who places a candidate in something other than a professional wrestling job could easily be in the ring of fire with the employer.

5. False Imprisonment

This strange-sounding civil wrong simply means the intentional restraint of someone against his will. Since most employees feel “restrained” just because they’re working instead of playing, you can see the possibilities here.

Detaining employees for questioning (even about job-related incidents) is the most common area of liability. However, requiring that they remain for testing, remain at company softball games, and even remain in the supervisor’s office while he insults them will qualify.

It’s one of those offenses that’s regularly included in pleadings as a “catch all” if one of the other theories can’t be proven.

Some very bizarre uses of ropes, swings, pulleys, chains, knives, swords and guns can be found in your state’s casebooks. They make great adult bedside reading.

You’ll be up a lot at night if false imprisonment (through conspiracy) is alleged against you. There’s open-ended liability when a candidate becomes a victim, even if he’s not placed.

6. Invasion of Privacy

A candidate can be “over-interviewed” or an employee can be “over-investigated.” Invasion of privacy is vaguely defined as “intentional interference with the right to be let alone.”

Recent cases have been decided in Texas about searching employees’ lockers (K-Mart Corp. v. Trotti, 677 S.W. 2d 632); California about searching employees’ desks (O’Connor v. Ortega, l07 S.Ct. 1492, 1 EIR 617); and Pennsylvania about opening employee’s private mail (Vernors v. Young, 539 F.2d 966).

Since privacy is a constitutional right, you may find yourself defending the employer’s actions in Washington, D.C. before the U.S. Supreme Court. For more information on this expanding area see Chapter 52 in Placement Management entitled “A Candidate’s Right to Privacy.” (Search Research Report No.)

Consider your liability for “cold calling” recruits at work if it jeopardizes their job (or worse).

7. Inducing Breach of Contract, Interference with Contractual Relations and Interference with Prospective Economic Advantage

Any time a candidate is motivated to leave his job, inducing breach of contract can be alleged against you. It makes no difference whatsoever that there’s no written employment agreement. Interference with contractual relations, and subsequent interference with prospective economic advantage (even by a placement that doesn’t work out) also apply.

The Alabama Court of Appeals upheld a jury award of $120,0000 on “prospective” grounds (including fraud) when a recruiting employer told two candidates their non-compete agreements were “not worth a damn.” (Empiregas, Inc. v. Hardy, 487 So.2d 244 cert. den. 106 S.Ct. 1973).

I hope you’ve taken steps to fireproof your business.

Headhunter’s forest is becoming a dangerous place for the unprotected.

We’re not alarmists, just front-line firefighters. A little prevention now can keep you from being in a five-alarm fire dialing our hotline when it’s too late.

Editor’s note: Tomorrow we will go into the unknown territory of liability after the candidate is placed and injures someone else.

This article is for informational purposes only. Please consult your attorney for specific legal advice.

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