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A Look At Negligent Hiring Law Suits
Presented below are the most common reasons for lawsuits involving the negligent hiring and retention of employees.It may be suprising to some that issues occuring "after" hiring can be as troublesome as failure to do proper screening prior to employment. Although the following issues will cover the great majority of cases that are filed as the result of employee misconduct they are by no means all inclusive. The most common issues are:
* Negligent hiring: the failure to properly screen employees, resulting in the hiring of someone that has a history of violent or criminal acts.
* Negligent retention: retaining an employee after the employer became aware of the employee's unsuitability, thereby failing to act on that knowledge.
* Negligent supervision: failing to provide the necessary monitoring to ensure that employees perform their duties properly.
* Inadiquate security: security measures that were provided to safeguard employees, customers and members of the public, not consistant with the potential threat.
Another issue that is a growing threat is domestic violance. Although a battered spouse can move to avoid harrisment it is difficult to change jobs. One place a person can usually be found is at their job location. If a new employee is changing jobs and residences you may wish to consider whether the change of employment is the result of being stalked.
NEGLIGENT HIRING AND RETENTION OF A DANGEROUS EMPLOYEE
Many employers are faced with the following dilemma: They are forbidden by law from asking a prospective employee certain questions, yet they can be sued for the negligent hiring or retention of a dangerous employee. A Minnesota landlord, for example, was held to have been negligent in hiring a resident manager who raped a tenant. Although the manager had a criminal record, he was furnished with passkeys to tenants’ apartments. In its ruling in this case, the Minnesota Supreme Court defined the following aspects of the law:
Negligent hiring. Negligent hiring is an independent cause of action; in other words, it constitutes the basis for a legal claim by an injured party.
Duty of care. Employers have a duty to exercise reasonable care in hiring individuals who, because of the type of employment and amount of contact with the public, may pose a threat of injury to members of the public.
Foreseeability. The employer need not have foreseen the plaintiff’s particular injury (i.e., rape), but the landlord had reason to anticipate that its employee, with a history of violent crime, might well commit another violent crime, even if this crime wasn’t identical to the employee’s previous offenses. Therefore, the employee’s rape of the tenant was foreseeable.
Reasonable investigation. Although employers have no independent affirmative duty to investigate an applicant’s criminal record, such an investigation is a reasonable precaution if other factors validate it. Because the employee’s application contained only a three-month work history and listed only two relatives as work references, an inquiry into these facts would have alerted a careful employer into making a reasonable investigation of a possible criminal record. Employers breach their duty of care when, despite suspicious facts on an employee’s application, they fail to make a proper investigation.
Cause. The landlord’s negligent hiring was the proximate cause of the plaintiff’s injuries. This conclusion was based on the fact that the manager, who had a criminal record for assault and night prowling and two and a half months of psychiatric care in a hospital, was furnished with a passkey to tenants’ apartments.
Employers have been found liable for negligent hiring or retention of dangerous or incompetent employees in most states, including Alaska, California, Florida, Georgia, Illinois, Kansas, Maryland, New Mexico, and New York.
Negligent retention is the breach of an employer’s duty to be aware of an employee’s unfitness and to take corrective action through retraining, reassignment, or discharge. The employer must be careful when the responsibilities of an employee are changed over a period of time. Consider, for example, an employer who hires an employee to work on the grounds of a town house development. Because the employee will have little contact with the residents, the employer is not required to investigate the employee’s past. However, if the employee later is transferred to inside maintenance work and is given access to apartment passkeys, the employer now has a duty to investigate the employee’s past record.
Negligent hiring and retention actions are often brought where traditional theories of vicarious liability are unavailable. Vicarious liability is a theory under which an employer is liable for an employee’s acts outside the scope of employment if the employer knew or should have known that the employee posed an unreasonable risk of harm.
The following examples will provide an overview of the situations in which liability has been imposed on employers:
A camp counselor playfully pointed a gun at a camp ranger’s son and shot him in the neck.
A realty company was held liable for a real estate agent who duped someone into paying off a $158,000 loan even though the company knew nothing of the misrepresentations that the agent had made to the person. The company knew that the agent had forged documents for a former employer, had been convicted of passing bad checks, and had lied about obtaining a realty license. Nevertheless, the company still vouched for the agent’s character. Knowledge of the risk the agent posed made the company liable for the agent’s subsequent misconduct.
A taxicab company was liable for a person beaten by a taxicab driver after paying his fare and leaving the cab.
The U.S. District Court for the Southern District of New York awarded $1.5 million to a woman and her son who suffered physical and psychological injuries following a sexual assault on the woman by the maintenance man employed at the defendant’s apartment complex.
A taxicab company was held liable for negligence in hiring a criminally violent driver who raped and robbed a woman in the presence of her two young children.
An employer was held liable for the negligent hiring and retention of a sexually aggressive employee with a criminal record who subsequently raped a female coemployee.
A security company was liable for the negligent hiring, training, supervision, and assignment of a security guard who aided outside confederates in the theft of $200,000 worth of gold certificates.
Reprinted with permission from the Upstart Small Business Legal Guide by Robert Friedman