Case study of a corporation liable for negligent
employee investigation practices

Negligent Retention of a Pest Control Technician

Smith v. Orkin Exterminating Co., 520 So. 2d 363 (La. Ct. App. 1989). An Orkin employee raped the plaintiff two days after he visted the plaintiff's home to provide pest control services. During his original visit he unlocked a window so that he could gain access to the house to commit the rape. It was later discovered that, while employed by Orkin, he had previously been arrested for burglary and had twice raped another female customer. The plaintiff brought suit against Orkin for negligently retaining the employee. The court found that there was an enhanced duty of care of employers whose services required employees to be sent into customer homes, which duty is higher than that assigned to businesses conducted on the employer's premises. Orkin had recognized this duty and instituted yearly polygraph testing as a security measure. The yearly examination was not adequate to the task, though, evidenced by the fact that the rapist could pass the examination without lying only a few days after raping the previous customer. Sixty-eight questions covered the employee's relationship with the company, and only six questions covered the employee's relationship to customers. These six questions inquired about past thefts and drug abuse only. Orkin was thus found to have negligently administered the polygraph examination, its chosen method of security, and consequently to have negligently retained the employee. The plaintiff's award of $125,000 was affirmed.

The above case clearly stated that employers who send employees into a person's home have "an enhanced duty of care" to not employ persons who might harm others. The polygraph issues in this case have several aspects that are covered under separate cases and rulings.

The attorney general may furnish state summary criminal history information for decisions on employing persons who will seek entrance to private residences.

Michael Connelly was employed by the Balcor Property Corporation as a supervisor of an apartment complex and raped three tenants. He is currently in the State Penitentiary. Mr. Connelly covered up his past on his employment application and proved once again that employment applications require scrutiny and probing to be meaningful. If they are merely initialed and filed away, trouble may raise its ugly head.