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Negligent hiring and negligent retention are fodder for lawsuits when management fails to screen the applicant it employs. The difference between the two is the time the employer becomes aware the employee is unfit for the job. These kinds of cases have legal precedent dating back as far as 1911, while most such cases have been filed since the early 1980s. The awards in these cases have resulted in an average out of court settlement of $500,000 and a jury award of $3 million.

Negligent hiring occurs when, prior to hiring, the employer knew or should have known that a particular applicant was not fit for the job. Failure to adequately screen applicants results in liability for the employer. Negligent retention occurs when an employer becomes aware of employees unsuitability-or should have been aware of it-and fails to act on that knowledge. Negligent hiring and retention allows the employer to be held liable for actions of its employees outside the scope of their duties. It is only necessary to prove that the employer was negligent in hiring or retention practices.

 Hiring and retention suits are not limited to employees who injure customers. Violence against fellow employees may also result in litigation. While such violence by a disgruntled employee may be considered as a random, unpreventable act, the employer’s failure to see the potential for that act may be called into play in a lawsuit. According to “Duty of Care Standards”, an employer has a responsibility to provide a safe work environment.

There was a landmark case in California in 1976, Tarasoff v. Regent of University of California; in that case the courts identified the factors necessary for Duty of Care standards to apply. They are as follows: (1) forseeability of harm; (2) connection between the incident and injury sustained; (3) degree of injury; (4) blame attached to the defendants conduct; and (5) policy of preventing future harm.

Forseeability- an employer’s knowledge of the potential for threats of violence-is an integral part of the employer’s duty to protect. Conversely, the random killing of 21 customers at a McDonald’s restaurant in San Diego was held by the Court in Lopes v. McDonald’s (1987) to be the homicidal acts of a “maniacal suicidal person” and therefore not foreseeable.

 In an early negligent retention case, Carr v. William Crowell Co. (1946) the court ruled that the employer would be held responsible for another employees intentional action that arose from the workplace. An employee attacked another employee with a hammer; an act the court ruled was not personal malice, because the victim and attacker were strangers outside of work. The Court said the injury was the result of employment.

 In a negligent hiring case from 1979, $750,000 was awarded to a plaintiff against Avis Rent- A- Car. In this case Avis Management failed to check the application of a man before hiring him. The employee subsequently raped a co-worker. Had Avis checked, it would  have discovered that the time the applicant listed as being in school, he was actually serving a three year prison term.

 In another case, an Amtrak employee shot and seriously wounded his supervisor. The supervisor was awarded 3.5 million. This action was brought because of the employer’s failure to discipline the employee for previous actions that indicated violent tendencies. The court found that this employees action were foreseeable, because the employee had attacked other employees previously. Amtrak was held liable under the theory of negligent retention.

 To prove negligent hiring or retention, the plaintiff must prove five factors:

• The existence of an employment relationship.
• The employee’s incompetence.
• The employer’s actual or constructive knowledge of such incompetence.
• The employees act or omission caused the plaintiffs injuries.

The employers’ negligence in hiring or retaining the employee as the proximate cause of the plaintiffs’ injuries.

 Without proper self-policing, known as “corporate compliance “, criminal charges and civil fines can be levied against corporations and their officers. Employers must have an effective program to prevent and detect violations of the law. And this program must be reasonably designed, implemented and enforced so that it will be effective in preventing and detecting criminal conduct. An employer with a corporate compliance program in place is in a far better position to defend itself against a lawsuit or criminal action by its employee than a company which has none.

 While the duty to protect is a broad concept, it stems from the belief that an employee is entitled to a safe environment. Moreover, employers have a responsibility to maintain an environment safe from outside forces as well as from internal ones. In a negligence case against an employer, the plaintiff need only show that the employer had a duty, that it was breached and that the breach resulted in harm.

 To avoid the problems that stem from negligent hiring and retention and failure to protect in the workplace, employers should screen all applicants with every means available. And if a serious problem arises with an individual, seriously consider whether or not to retain that person. Employers should take advantage of APA SECURITY’S security survey services and make certain proper security procedures are in place to provide a safe work environment.

 ASSET PROTECTION ASSOCIATES

· Can advise our clients in designing a cost effective security program to assist clients in mitigating damages when and if, negligence lawsuits are brought against them

· Has the management expertise to assist our clients in implementing such a program.

· Employs the trained personnel to ensure the proper enforcement of our clients’ security programs.