The cashier has threatened to sue my business over the incident. I ran a criminal background check on the driver before I hired him because I wanted to make sure he wouldn't be stealing from my customers' homes, and no felonies or violent crimes showed up. Will I be liable for what he did?

A: As all employers should know, when an employee commits a wrongful act within the scope of his employment (for example, a waiter negligently spills hot coffee on a cafe customer), his employer can be held liable for his actions.

Generally, if an employee commits a wrongful act that's outside the scope of his employment (say, the waiter pulls out a gun and shoots a customer for complaining about the food), his employer isn't liable for his behavior. If the employer didn't perform a thorough background check before hiring him, however, the customer can sue on the grounds that the company was negligent in hiring him in the first place and she was ultimately injured by that negligence.

To prevail in a negligent hiring case, an injured party has to show that a reasonable person in the same position as the employer wouldn't have hired the employee. Customers are most likely to make that argument when they can demonstrate that the employer failed to adequately investigate a prospective employee's background, and had it conducted a reasonable investigation, it wouldn't have made the decision to hire him.

The number one thing you can do to protect yourself from negligent hiring suits is to conduct careful background and reference checks on potential employees and follow up on any information you receive. You should "ratchet up" the level and extent of your checks if a job involves lots of contact with the public (especially unsupervised contact).

For example, little to no background checking may be needed for a telemarketer who works in an office building and has no direct contact with the public, but a more rigorous background check might be needed for a repairman who's often required to go into customers' homes during the day.

Well-documented background and reference checks recently saved one Arkansas employer from liability for negligent hiring. A woman sued Comcast for negligent hiring after she was raped and nearly murdered by a cable installer:

When [the victim] arrived at home to find a Comcast truck at her house[,] she allowed the Comcast employee, dressed in his uniform[,] to enter her home to adjust her cable reception, after which he pulled a knife . . . and raped and unsuccessfully attempted to kill her. First, he hit her in the head with a blowtorch canister, and then he bound her hands and feet, and dropped her into a bathtub filled with water. Once [she was] in the water, he slit her throat, then tossed a lamp into the tub to electrocute her. She was still alive, so he held her head under water for more than a minute in an attempt to drown her. Finally he forced her, bound, into a closet, and set fire to her carpet with his blowtorch.

Despite the horrific facts of the case, the Arkansas Supreme Court held that the victim couldn't prevail. The court emphasized the fact that Comcast had conducted a preemployment drug screening and a background check and checked with two previous employers about the employee, all of which "gave no indication that [he] might be a risk to customers."

The court explained that to prevail on her negligent hiring claim, the victim had to present proof of something in the employee's history that "(1) would have been found by an 'adequate' background check, and (2) would have put Comcast on notice that [he] was predisposed to commit a violent act."

In your case, it's hard to say if just running a criminal background check will be enough. If your employee committed other violent acts that you could have discovered by calling previous employers, you could be held liable for his attack on the cashier. On the other hand, if he doesn't have a history of violent acts or at least hasn't done anything that a more thorough search would have turned up, you probably won't be responsible for his actions.