Tonkon

Legal Updates & Alerts

Negligent Hiring and Retention

August 14, 2007
Employers must be careful about whom they hire and whom they continue to employ, particularly when an employee exhibits violent tendencies. In such cases, employers must act and act fast.

Negligent hiring occurs when an employer hires an applicant that the employer knew or should have known was unfit for the job. One jury awarded a half-million dollars in damages after determining that the employer failed to conduct a thorough background check into a security guard's criminal history. The security guard shot and killed a suspected shoplifter. Negligent retention occurs when an employer becomes aware, or should have become aware, of an employee's unsuitability, and the employer fails to act on that knowledge. In one older example of an extreme case out of the Second Circuit, Smith v. National Railroad Passenger Corp., an Amtrak employee shot and seriously wounded his supervisor. The supervisor claimed that Amtrak was negligent because of its alleged failure to discipline the employee for previous behavior that indicated violent tendencies. The supervisor received $3.5 million in damages.

While jury awards have often been quite large in negligent hiring and retention cases, employers may minimize their potential liability by following a few basic guidelines:

Create and enforce careful screening procedures
  • Make sure that there are no apparent indications of tendencies to engage in illegal or improper conduct in application materials, but be careful about screening out candidates based on criminal history unless for a business necessity (such as when hiring security personnel or those who will handle money);
  • Require job candidates to sign an application form that releases you to obtain information from prior employers and also releases prior employers from any claims based on providing information about the candidate to you. Then contact prior employers and references to get candid information; and
  • Question applicants about any gaps in their employment history.
Implement strict procedures for handling and reporting improper conduct
  • Implement and publicize policies for employees, customers and vendors to report instances of improper conduct by employees;
  • Follow up on and document in detail all reports of improper conduct; and
  • Enforce a zero-tolerance policy when it comes to abusive, belligerent or combative behavior.
Don't forget to check up on your supervisors
  • Train supervisors in proper recruiting, interviewing and employee selection techniques;
  • Exercise a zero-tolerance policy when it comes to the retention of managers who refuse to investigate and handle instances of improper employee conduct; and
  • Conduct thorough background checks for all managers and supervisors, especially if they will be supervising teenagers. When conducting background checks, however, keep in mind the requirements of the Fair Credit Reporting Act, which we reported on in April.