I. INTRODUCTION
When employees do harm to third parties or co-workers, courts have found that employers that do not exercise due diligence in hiring persons with known propensities to be violent or dangerous or in retaining or failing to supervise such employees, may be subject to liability based on claims of negligent hiring, retention and supervision. This article discusses the legal theories of such claims with helpful solutions to avoid liability based on such claims.
II. LIABILITY AND PREVENTION ISSUES
The courts have recognized the legal doctrine of respondeat superior for generations. If an employee injures someone within the scope of employment, the employer may be held liable for the employee’s actions under this doctrine. The employer is held to owe a limited duty to any foreseeable victims of its employees. Specifically, the employer has a duty to see to it that the job, the employer’s workplace and its instrumentalities (e.g., machinery, equipment, vehicles, etc.) entrusted to employees does not endanger others. In maintaining a claim under this legal doctrine, an aggrieved party must prove that the employee was acting within the scope of his or her employment at the time the injury occurred.
There are however, other legal theories in which an aggrieved party’s claims for injuries caused by the acts of an employee may be maintained even though such acts are not within the scope of employment. The legal theories of negligent hiring, retention and supervision are based on principles in tort law that subject an employee to liability for negligence if it unreasonably fails or ignores an employee’s background or an employee’s propensity to exhibit or engage in behavior that subsequently harms an aggrieved party, such as a co-worker or other third party.
A. Negligent Hiring
A case of negligent hiring occurs when an employer hires and places a person with known dangerous or violent propensities or propensities that could have been discovered by reasonable investigation, in a position which should have been foreseeable that the person posed a threat of injury to third parties. To maintain a claim based on negligent hiring, the injured personmust prove the following elements:
The issue of liability focuses on the adequacy of the employer’s pre-employment background investigation. In order to investigate applicants prior to hiring, employers should consider the following:
Pre-employment background investigations should be proportionate to the amount of risk that may be incurred by the employment position sought. An automatic “red flag” should be raised for any employment situation in which an employee is placed in an unsupervised position or has unsupervised access to property with an opportunity to repeat dangerous or violent propensities or otherwise injure third parties.
B. Negligent Retention
A negligent retention claim may arise when, during the course of an employee’s employment, the employer becomes aware or should have been aware of risks with such employee and the employer fails to take appropriate action (e.g., investigate, transfer or terminate the employee). The issue is whether an employer was on notice of an employee’s threats of injury to others and failed to take measures to prevent harm or ensure the safety of others.
C. Negligent Supervision
A negligent supervision claim may arise by the employer’s failure to exercise ordinary care in supervising foreseeable misconduct of an employee that subsequently causes injury or harm to others. Generally, cases of negligent supervision claims hinge on the doctrine of respondeat superior and therefore, the aggrieved person has the burden of proving that the employee’s actions occurred within the scope of employment.
III. CASELAW
In Yunker v. Honeywell, Inc., 496 N.W.2d 419 (Minn. 1993), the Minnesota Court of Appeals ruled on a case involving claims of negligent hiring, retention and supervision. A Honeywell employee was sentenced to prison for five years for the strangulation death of a co-worker. Honeywell rehired the employee as a janitor after his release from prison. The employee became friendly with a female employee and she attempted to put a halt to his romantic advances. The janitor began to harass her at work and at home. She requested the assistance of management and asked for a transfer to no avail. On the day that a death threat was scratched on her locker door at work, the janitor resigned. Eight days following his resignation, the former janitor killed the female employee in her driveway with a shotgun. The woman’s heirs sued Honeywell for wrongful death on the theories of negligent hiring, retention and supervision. The court dismissed the negligent hiring claim, ruling that hiring the employee as a janitor did not create a foreseeable risk of harm to others. In other words, the janitorial position did not expose him to the general public and required only limited contact with co-workers. The court also dismissed the negligent supervision claim, reason that there must be a connection to the employer’s workplace or property (respondeat superior doctrine) and the woman was killed outside of work and with the murderer’s own weapon. The court upheld the negligent claim however, based on the employer’s knowledge of the employee’s post-imprisonment propensity for abuse and violence and the employer’s failure to take action to prevent harm and to ensure the safety of co-workers.
The Oregon Court of Appeals, in Hoke v. May Dep’t. Stores Co., 10 IER Cases 665 (Or.Ct.App. 1995), upheld a claim of negligent retention against the May Department Store. A shoplifting suspect alleged that the store’s security guard engaged in sexual acts with her. The same guard had previously been charged with sexual abuse of another shoplifting suspect. The court found the store liable because the guard was allowed to detain the alleged shoplifter without another person present and that the guard’s request to have a second person present during her detention was denied in violation of store policy.
IV. CONCLUSION
Negligent hiring, supervision and retention arises when an employer know or should have known of an applicant’s or employee’s dangerous or violent behavior or propensities and either hires the person or retains the employee, giving that person the opportunity to repeat such behavior or to act upon such propensities. Care must be given by employers to conduct pre-employment background inquires of job applicants and to immediately and efficaciously respond to situations that arise where employees pose threats to co-workers or other third parties.