Employers Should Revisit the Claims of Negligent Hiring and Retention

Just last week, a law enforcement union in Brevard County, Florida, posted on social media a recruiting statement directed toward police officers who had been disciplined for the use of force against protesters. The uproar caused by the union’s recruiting statement and recent public incidents involving excessive use of force against citizens should encourage both public and private sector employers to revisit the claims of negligent hiring and retention.

Negligent hiring and retention are two of several common-law actions (meaning, claims supported by courts’ legal precedents) where an employer may be held liable for the actions of an employee. Liability for negligent hiring typically is imposed when it can be demonstrated that an employer knew or should have known through reasonable care and investigation that an employee was unfit for the position and reasonably foreseeable actions of the employee caused injury to an individual. Negligent retention claims are a little different – liability of the employer may be established for injury caused by an employee when the employer knew or should have known that the employee was unfit for the job and that continued employment posed a risk to others.

A common defense to a negligent hiring or retention claim is proof that the employer did not know (or had no reason to know) that the employee posed a risk to others. The employer’s defense often relies on evidence that it conducted a thorough investigation into the employee’s prior employment history and criminal background.

The level of investigation required into an employee/applicant’s background typically depends on the position and the extent to which the employee interacts with members of the public. Also, state and federal laws or regulations may provide background check requirements for specific positions (such as for childcare or healthcare providers).

What can employers do to reduce their exposure to liability for negligent hiring or retention claims? First, depending on the position, employers should engage in a thorough screening of the applicant/employee’s background and criminal history to determine whether the employee is unfit for the position or if prior conduct poses a risk to employees, customers, or other third parties. Employers Council offers pre-employment screening services, and our attorneys can provide guidance on how employers should consider an applicant or employee’s criminal history when evaluating suitability for a position.

Another suggestion would be for employers to review the disciplinary files for their current employees and consider whether the employee has met management’s expectations concerning any required remedial disciplinary action or performance improvement plan. Has the employee completed the requisite training, course study, counseling, or other remedial requirements? Employers also should make sure that the disciplinary actions taken are likely to address and correct the misconduct and will operate to protect other employees or third parties. Contact Employers Council for help.