On the date of offense, McCowen worked as a trash collector for Cape Cod Disposal Company. He picked up trash at Worthington's home on a weekly basis.

The civil suit alleges that CCDC Equipment Services, Cape Cod Disposal's parent company, "had an obligation to use reasonable care in selecting and retaining its employees to be sent to the homes of its customers and to not send persons who the [company] knew or upon reasonable inquiry should have known would pose a threat of harm to customers."

Citing McCowen's history of violent behavior, which included convictions in Florida and Massachusetts for burglary, grand theft, trafficking in stolen property, felony assault and threats to women that resulted in the issuance of multiple restraining orders, the suit claims the trash company failed to properly investigate his background.

The suit further states the company negligently sent McCowen to the victim's home "thereby putting [McCowen] in contact with [her] and allowing [him] to familiarize himself with the home … and putting him in a position to burglarize the home of [the victim] … and cause her to suffer serious bodily injuries which resulted in her death."

Despite McCowen's lengthy record, Bierhans said it was impossible for the trash company to predict that a crime like this might occur.

"It's easy now when someone has been charged with the crime to say that the trash company should have known that this was going to happen, but tell me how in the realm of foreseeability that the employer in this case or any case could predict that an employee would go out and allegedly commit a heinous murder like this," he said.

The trash company's lawyer predicted that issues concerning foreseeability and duty of care would play a far greater a role in the civil case than the guilt or innocence of McCowen, which is currently being litigated in the criminal trial.

"Assuming that we know who the murderer is, they still have to establish that the trash company had a duty to do a background check, and then they have to establish that even if there was a duty, the acts were somehow foreseeable and that the trash company could have done something to prevent it," Bierhans said.

Where much of the defendant's criminal history occurred in Florida, Bierhans noted that a standard background check would have been futile.

"Without hiring a private investigator, which many small businesses simply can't afford to do, there is no way that a normal Massachusetts background check would have disclosed those things," he said.

Kelly Nantel, a spokesperson for the Massachusetts Criminal History Systems Board, confirmed that a request made by a business owner who was not certified to receive CORI information, would not pick up on a defendant's out-of-state record or ordinarily lead to the disclosure of restraining order applications taken out against an individual.

Even if did, employment lawyer Scott C. Merrill of Boston agreed that the information would still not allow an employer to accurately predict that certain behavior might occur in the future.

"Obviously employers can't foresee everything and a criminal record check is only going to turn up a certain amount of information on an individual, so whether or not you can actually glean something from that is really speculative," he said.

In addition, Bierhans said caselaw in Massachusetts has consistently held that employers in his client's position owe a different duty of care to customers than those hiring people to work in schools, day care centers, or elderly homes.

"These are guys who sit on the back of trash trucks picking up garbage at the end of people's driveways," he said. "Most of the time, they don't have any idea who the people are that put their trash out, and the cases that are out there look at the foreseeability of the harm, the nature of the business and whether or not the employee has contact with customers or clients in the general public."

Bierhans noted that if an employer in his client's position was required to conduct a background check that would disclose the sort of court involvement McCowen is believed to have had, many businesses would be unable to survive.

"The responsibility of the employer would never end," he said. "Tell me a situation where an employer would not be required to conduct a background check on someone driving a truck or acting in any kind of employer-employee relationship even where they don't have contact with the public."

Bierhans added that employers would be put in a position where they would have to conduct an extensive background check on every potential employee.

"You're not just talking about calling up their references or doing something customary like that, you're talking about figuring out a way through the use of private investigators or people in the security business to do a thorough background check that encompasses not only in-state but out-of-state offenses," he said.

Regardless of the outcome of the suit, Pickett said that employers would be wise to be as thorough as possible during the hiring process.

"I think as a practical matter, what this type of situation illustrates is the importance of at least asking the questions you're permitted to ask up front," he said.

Pickett explained that when drafting written job applications, Massachusetts has carved out a list of specific questions that employers are allowed to ask of potential hires.

"You're allowed to ask if the person has ever been convicted of a felony or if they have completed a period of incarceration in the past five years for any misdemeanor," he said.

In order to protect themselves from liability and to make as informed a decision as possible, the employment lawyer said he always advises employers to make sure they ask those questions and to carefully review their answers.

"I can't speak to this case, but I'm amazed at the number of times that employers don't even bother to look at the application or don't even bother to have someone fill out a written application," he said. "No one can foresee these kinds of tragedies but my advice to employers would be to make sure you're able to show that at least you asked the right questions up front."