HearBest, Inc. v. Adecco USA

HearBest, Inc. (plaintiff) contracted with Adecco USA (defendant) to help HearBest find and hire a temporary employee. The parties’ contract required Adecco to check all candidates’ criminal records, and it contained two clauses limiting liability. The first clause limited each party’s liability to direct damages and to “risks and responsibilities inherent in the party’s business or activity.” The second clause, an associate guarantee, provided that Adecco would make reasonable efforts to replace an unsatisfactory temporary employee and would refrain from charging for the employee’s work if HearBest notified Adecco of its dissatisfaction within the first eight hours of the assignment. The associate guarantee further stated that it was HearBest’s sole remedy for dissatisfaction with a temporary employee’s qualifications, performance, or conduct. Adecco sent a temporary employee, Evalyn McKinney, to HearBest after intentionally failing to conduct a criminal-records check. HearBest hired McKinney, who had a criminal record. McKinney embezzled $16,000 from HearBest and orchestrated a cover-up of the theft. HearBest sued Adecco for breach of contract, seeking $200,000 in damages for the embezzled funds, the cost of hiring an accountant to examine and reconcile accounts after discovering the theft, additional fees paid to Adecco, and lost sales and expenses due to Medicare recredentialing allegedly caused by McKinney’s wrongdoing. Adecco moved for summary judgment, arguing that HearBest had failed to provide notice of its dissatisfaction with McKinney’s performance within her first eight hours on the job and therefore that, pursuant to the associate guarantee, HearBest’s damages were limited to McKinney’s salary for eight hours.