Arizona hotels have come under fire for potential negligent hiring of employees of who have unfettered access to rooms. During the last two years a couple of hotels in Maricopa County have hired employees who were convicted felons, gave them access to hotel rooms, and allegedly the former employees sexually assaulted guests.
Now, a few state lawmakers are looking into whether background checks should be required for certain employees who work at hotels.
I think this is a good idea as long as it is narrowly tailored. My presumption would be that mandatory, state law required, background checks for certain hotel employees working in sensitive positions would only require a criminal background check through a state-maintained database. If hotels want to go above and beyond a criminal background check then that is their prerogative.
My main concern with the background checks is that it could be an invasion of privacy. However, if state mandated background checks are only required for areas which might compromise guests safety, then I think that the state interests can be served while at the same time reasonably protecting privacy.
Victims can sue civilly. It appears one of the victims in Arizona is suing civilly. One cause of action for a civil lawsuit could be negligent hiring. The thought is if a hotel did not perform its due diligence during the hiring process and subjected its guests to unnecessary risk, then it could be held liable civilly (presumably for monetary damages).
The general rule for such actions is pretty well established.
(2) When a principal has a special relationship with another person, the principal owes that person
a duty of reasonable care with regard to risks arising out of the relationship, including the risk that
agents of the principal will harm the person with whom the principal has such a special relationship.
— Restatement (Third) of Agency, § 7.05.
In this situation the principal would be the owner/employer, and the agent would be the employee. The rule creates a civil duty in negligence.
Arizona state courts have found relationship between a hotel and a guest would qualify as a special relationship. “A duty to protect arises only where there is a special relationship between the defendant and the victim, such as carrier-passenger, innkeeper-guest, landlord-invitee, guardian-ward, teacher-student, or jailer-prisoner.” Bloxham v. Glock Inc., 53 P.3d 196, 199 (Ariz. Ct. App.2002) (internal quotations omitted); Wertheim v. Pima County, 425,122 P.3d 1, 4 (Ariz. Ct. App.2005); See Collette v. Tolleson Unified Sch. Dist., 54 P.3d 828, 832 (Ariz. Ct. App.2002).
“The most important circumstances are the foreseeable likelihood that conduct will result in harm, the foreseeable severity of that harm, and the burdens imposed by precautions to eliminate or reduce the possibility of harm.” Restatement (Third) of Agency, § 7.05 cmt. b.
It seems foreseeable that harm could occur if a hotel gave an employee with a dangerous past (including dangerous felony convictions) access to the master key of the hotel. Giving out the master key to the hotel would probably be something the owners/employers of the hotel would want to be particularly careful with.
Preventing harm to guests at hotels is a good goal, and if the Arizona State Legislature can help prevent harm to guests with reasonable preventative legislation, I am for it. Suing civilly takes a lot of time and can be very costly. Also, suing civilly really does not prevent future harm from occurring. This is a careful balance between preventing physical harm and respecting employees privacy.