Human resources professionals have been breathing a bit easier because of the retrenchment in the “At-Will” Employment Doctrine.(1) The repreive was short lived, however, as a relatively new employee relations law scourge has surfaced- The Tort doctrine of negligent hiring/retention.(2) Although this theory is not new, it’s prominenece is growing. This added cause of action in tort law is resulting in increased employer liability and risk. Often, Court award outcomes in these cases are in the hundreds of thousands of dollars, and more, and are likely to be upheld on appeal. The limitations placed on human resources professionals and employers relating to preemployment inquiries make an interesting contrast to the negligent hiring dogma. Discrimination law, such as title VII of the civil rights act of 1964, as written and/or interpreted by the courts, proscribes many inquiries that have a negative employment-related impact on protected classes of people. Plaintiffs also are asking the courts to curb employer access to employee records and other personal information under the right to privacy arguement, a constitutional arguement employing fourth amendment illegal search and siezure guarantees. Human resources managers can be heard in corporate hallways mumbling about these apparent conflicts and incongriuties in common law and government mandate.
Historically, If a worker commited a negligent act, a plaintiff often would sue his or her employer under the theory of Respondeat Superior, or let the master respond. (3) This doctrine holds the employer liable for his or her employees’ negligent, on the job actions and does not depend in any way on the fault of the employer. (4) Common law held that employers owed thier employees a duty to provide a safe place to work. Eventually, this duty was extended to providing safe employees, because the courts reasoned that a dangerous co-worker is comparable to a defective machine. (5) In the majority of successful negligent hiring/retention court cases the nature of the relationship between customer plaintiff and business defendant seems to drive the outcome. In cases in which plaintiffs have recovered, there appears to be a higher degree of duty or care required between business and it’s customers because of the nature of the product or service provided.
A defendant owes a duty of care only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Therefore, duty under the negligent hiring theory depends on forseeability, that is, “Whether the risk of harm from the dangerous employee to a person..was reasonably forseeable as a result of employment.” Some examples of a higher duty of care include Landlord/tenant relationships, common carriers (railroads, airlines, ship lines), hospitals, and other patient care facilities and taxi services. Often when a negligent hiring complaint is initiated a simultaneous allegation is made of negligent retention. Negligent hiring allegations imply a preliminary error in terms of the hiring process This means that the employer should have known before hiring an individual that the person was unfit for employment.
Negligent retention is an after-the-fact consideration applying to the instances in which the employer becomes aware of the employee’s unfitness after hiring him or her. Here the employer has an obligation to initiate an action to counter the person’s unfitness, including retraining, reassignment, rescheduling or discharge a negligent hiring and employment allegation was at issue. The focused action precipitating this case occured after the worker terminated employment. The case involved a customer who contracted with the Apollo Termite & Pest Control Co. to provide regular service in her home. Apollo assigned the co-defendant employee, Randall Payne, to provide service in Abbot’s home. Abbot worked full time, so it was necessary for the pest control company to have access to her home while she was away. Therefore the company requested that Abbot provide a passkey. Because Payne would have the key and, therefore, independant access to her home, Abbot sought and obtained representations from the firm that Payne was reliable and trustworthy, and the company was fully bonded. quently, based on assurances from the company, the plaintiff allowed Payne to enter her home.
Shortly after his employment with Apollo ended, Payne used the passkey to break into Abbot’s home at night, and psysically assaulted her. The court found in favor of Abbot, saying that liability for an ex-employees conduct can occur, and that the employer has a duty to inquire into the background of a job applicant, including past employment and references. In its opinion, saying: If an employer wishes to give an employee the indicia of authority to enter the living quarters of others, it has the responsibility of first making the inquiry whether it is safe to do so. The court reaffirmed the ( Williams ) opinion, indicating that when an employer provides assurances to a customer, vouching for an employee’s honesty, reliability and trust, that employers responsibility ( And liability ) is increased accordingly. In another case Salinas vs. Fort Worth Cab & Baggage Co. ( 725 S.W. 2d 701 { Tex 1987 }) the plaintiff Maria Salinas, was raped, sodomized and robbed by a taxicab driver who accepted her as a fare.
The driver had an extensive criminal assault record, including rape and assault. The plaintiff argued that this information should have been available to the Ft. Worth Cab & Baggage Co. and that the employer should have known about the employee’s criminal record and made use of it before hiring him. The defendant cab company admitted that it made no preemployment check of the driver’s background. The court held the business liable for negligent hiring and retention of a violence prone employee who had willfully injured others during the course of his employment.
A Georgia court of appeal held the employer to a higher duty when it investigated backgrounds of security guard applicants. A guard provided by a sercurity service entered a client’s business and stole a blank check. After forging signatures on the check, he successfully cashed it through the tenants bank. The Bank sued the security company alleging negligent hiring.
The security firm defended itself by saying that it had followed it’s usual pre-employment procedure and had contacted the individuals past employers. The court denied summary judgement saying that because of the nature of its business, the firm was required to exercise greater care ( I.E. Beyond what the firms usual practice entailed ) to ascertain whether potential security guards possess specific characteristics, such as honesty, that are required by the nature of the employment. The health care industry is another prime example in which duty of care is increased in regard to hiring and employment.
In Joiner vs. Mitchell County Hospital Authority A negligent hiring claim involved the alleged failure of a hospital’s employment procedure in not requiring proof of the physicians qualifications. The plaintiff’s spouse was brought to the hospital complaining of chest pains.
A hospital physician examined the patient and released him saying that the patients condition was not problematic. After arriving home, the patient’s pain intensified. On returning to the hospital the patient died. In her suit against the hospital, the wife claimed that the hospital failed to require proof of the physician’s professional qualifications and that simply relying on the fact he was state licensed was not enough. The Georgia appeals court agreed, saying that hospitals have an affirmative duty to conduct independant investigations into a physician’s professional competence. Contrasting the negligent hiring issue is that of negligent retention.
In Pruitt vs. Pavelina realtor hired an agent to sell its real estate listings. Management knew of some of the indiscretions and became aware of others on the part of its newly hired real estate agent when employment was offered. These indiscretions included forging documents for a former employer, a conviction for passing bad checks and lying about obtaining a realty license.
Despite knowledge of these matters, the realtor vouched for the employee’s character to the public. The court concluded that the firm was liable for the consequences of it’s agents misconduct because most of the individual’s past actions became known to the employer after this person was hired. In a New Mexico case, Valdez vs. Warner , a bar employee assaulted a patron, Victor A. Valdez, In the parking lot of his employer and his co-defendant Z Inc. The plaintiff brought actions. The court of appeals accepted evidence that the ” defendant previously physically assaulted the son of the owner of the (Co) defendant bar, and at one point he was banned from the bar for fighting, and that while working as a bouncer in the same bar he was involved in other physical alterations.” Even with knowledge gleaned before he was hired and subsequent knowledge gained after employment, the defendant was retained. The court found ” There was evidence… that the owner of the bar was negligent in Hiring Warner with his background of violent behavior..” An additional twist to this case was the plaintiffs request for punitive damages.
The courts response to this request was that ” Recovery of punitive damages is permissible if the jury finds the wrongdoers conduct to be willful, wanton, malicious, reckless, oppresive or grossly negligent..” The court added that ” Gross negligence is a sound basis for award of punitive damages.” The case was remanded to a lower court with instructions saying that if a jury found, based on the evidence, That Z Inc. was guilty of gross negligence, than punitive damages would be appropriate. Courts that have heard and ruled on negligent hiring/retention charges have indicated that employers are responsib …
