Negligent hiring and its consequences: Why employers should investigate every applicant carefully
What an employer doesn’t know about his employees can hurt him. There is a new legal trend emerging in which employees who are injured or harmed by another employee are suing their employers. The legal theory under which the employers are being sued is called negligent hiring and negligent retention. What are these new legal theories and how can an employer protect themselves from a potential lawsuit involving one of them?
Negligent hiring occurs when an employer fails to use reasonable caution when hiring an employee who could potentially harm another employee.
Negligent retention occurs when an employer carelessly retains an employee whom a reasonable person would know poses a threat of harm or injury to another person.
Examples of negligent hiring and negligent retention cases
Here are a few examples of negligent hiring and retention lawsuits that resulted in the employers having to pay thousands or even millions of dollars in damages:
A nursing home was found liable for hundreds of thousands of dollars for the negligent hiring of an unlicensed nurse with prior criminal convictions who assaulted an 80 year-old visitor.
A furniture company was found liable for millions of dollars for the negligent hiring and retention of a deliveryman who attacked a female customer in her home.
A pizza company was held liable when it failed to look into the criminal history of a man who raped a female customer. The man ‘s criminal history included a prior sexual assault and stalking conviction.
What can be done to protect against these lawsuits?
The employer must show that he acted with reasonable caution and care when he hired someone in order to protect against liability. If the employer investigates and discovers some troubling facts, it may be best not to hire the employee. If the employer finds no startling facts, but has exercised due diligence in the investigation, he will likely protect himself from liability in case something goes wrong. Here are some of the appropriate steps to take:
Conduct a criminal background investigation before hiring
Some states allow employers to conduct a criminal background search for any type of job, but some states only allow it for certain jobs, so check your local laws and then conduct one if possible.
An employer can always contact references. Ask a lot of questions and ask questions that will divulge facts about the employee candidate. Base your decisions regarding the employee on the facts gained from the reference.
Take action immediately when problems arise
To avoid a negligent retention lawsuit make sure that you take appropriate disciplinary action against any employee who has problem behavior or behavior that reveals a potential threat. Be sure to document all appropriate actions and terminate the employee if necessary.
With negligent hiring and retention lawsuits growing in the U.S. every employer should be aware of how to deal with them. It is useful information to avoid a lawsuit, but more importantly it will help to ensure that your employees and customers are safe at work and in the workplace. Take appropriate steps such as conducting a criminal background check, contacting references and disciplining employees when necessary. Additional steps can be taken and each state has it’s own laws in this regard, so be sure to contact local counsel to learn the rules in your state.
 Fred S. Steingold, The Employer’s Legal Handbook: Manage your Employees and Workplace Effectively 185-188 (Alayna Schroeder ed., Nolo 9th ed. 2009).