Negligence in employment
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Negligence in employment encompasses several causes of action in tort law which arise where an employer is held liable for negligence of an employee because that employer negligently provided the employee with the ability to engage in an act, and an injury resulted because of the employee's act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training.
As with all negligence claims, the plaintiff must prove that the employer or entruster owed a duty of care to the plaintiff; that this duty was breached; that the plaintiff suffered an injury; and that the resulted from the breach.[1] In order for a duty to exist, the injury to the plaintiff must be foreseeable, meaning that the type of employment or entrustment must be one where an unfit employee or entrustee can cause harm, and that the plaintiff is the type of party to whom such harm might be caused.[2]
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[edit] Negligent hiring
Negligent hiring is generally found where the employee who actually caused the injury had a reputation of record that showed his propensity to misuse the kind of authority given by the employer, and this record would have been easily discoverable by that employer, had a diligent search been conducted. For example, a victim of sexual harassment in the workplace may have a cause of action for negligent hiring on the part of her employer if she can show that the employer was aware of the harasser's termination from a previous position for the same behavior.
[edit] Negligent hiring preventive measures
In the sexual harassment example described above, the employer may be held liable for negligent hiring if the harasser had a previous history of victimization. Clearly, the employer has an obligation to its employees to provide and safe and productive workplace.
One preventive measure for negligent hiring is to perform a reasonable investigation on potential employees. This may include conducting an interview, verifying work and educational histories, checking references and conducting a background check on all applicants who have accepted an offer of conditional hire, and if an adverse assessment is found, to deny employment to said applicant. Note that simply conducting a criminal background check on an applicant may not be a sufficient investigation. In Minnesota, for example, such a check was determined to be insufficient by the court in Ponticus v. K.M.S. Investments (Minn. 1983). Also this certainly will not guarantee the employer will not be held liable, but it will show that the employer used a diligent search to screen potential harassers from the workplace.
It is important to also note that background checks for job applicants are subject to the Fair Credit Reporting Act. If an adverse assessment is found in an employment screen, the applicant has the right to dispute the report.
[edit] Negligent retention, supervision, and training
Negligent retention occurs where a party failed to remove an employee from a position of authority or responsibility after it became apparent that the employee was in fact misusing that authority or responsibility. Negligent supervision is closely related, as it occurs where a party fails to reasonably monitor or control the actions of an existing employee. A variation of negligent retention or supervision is negligent training, which arises where the employer's training of the employee fails to prevent the employee from engaging in the acts that injure the plaintiff, or fails to remediate a pattern of behavior which leads to an injury. Suits for negligent retention often plead negligent supervision or training as an alternate theory, as the employer who knows of an employee's improper conduct should either terminate that employee, or take steps to penalize that conduct and/or train the employee not to engage in that conduct.
[edit] Negligent entrustment compared
Negligent entrustment arises where the entrustor is held liable for negligence because they negligently provided the entrustee with a dangerous instrumentality, and the entrusted party caused injury to a third party with that instrumentality. Where such a claim is brought against an employer, the employer will be held liable if the entrustee's record was known to the employer or would have been easily discoverable by that employer, had a diligent search been conducted. For example, if a bus company hires a driver who has a record of reckless driving, which the company could have learned of through a search of publicly available records. The company will be liable for the negligent entrustment of the bus to that driver, if the driver is in an accident.
Negligent entrustment differs from negligent hiring, retention, supervision, and training in two key respects. First, negligent hiring and the related torts require the actual employment of the party causing the injury, whereas a party can be held liable for negligent entrustment to any person. Second, an employer can be found liable for negligent hiring even without provision of any dangerous instrumentality to the employee. However, where an employer hires an unqualified person to engage in the use of a dangerous instrumentality, as in the above example with the bus driver, the employer may be liable for both negligent entrustment and negligent hiring.
[edit] Vicarious liability compared
Vicarious liability is a separate theory of liability from negligent hiring, retention, supervision, or training. The doctrine of vicarious liability provides that an employer is liable for the torts of an employee under an agency theory, even if the employer did nothing wrong. This is because the acts of an agent of the company are assumed by law to be the acts of the company itself. By contrast, each of the above negligence theories requires proof of actual negligence on part of the employer before the injury occurred, for example when the employee was first hired.
