IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.