Negligent Hiring/Retention

By January 1, 2019 Human Resources

Human resources professionals have been breathing a bit easier becauseof the retrenchment in the “At-Will” Employment Doctrine.(1) The repreivewas short lived, however, as a relatively new employee relations lawscourge has surfaced- The Tort doctrine of negligent hiring/retention.(2)Although this theory is not new, it’s prominenece is growing. Thisadded cause of action in tort law is resulting in increased employerliability and risk. Often, Court award outcomes in these cases are in thehundreds of thousands of dollars, and more, and are likely to be upheld onappeal.

The limitations placed on human resources professionals and employersrelating to preemployment inquiries make an interesting contrast to thenegligent hiring dogma. Discrimination law, such as title VII of the civilrights act of 1964, as written and/or interpreted by the courts, proscribesmany inquiries that have a negative employment-related impact on protectedclasses of people.

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Plaintiffs also are asking the courts to curb employer access toemployee records and other personal information under the right to privacyarguement, a constitutional arguement employing fourth amendment illegalsearch and siezure guarantees. Human resources managers can be heard incorporate hallways mumbling about these apparent conflicts andincongriuties in common law and government mandate.

Historically, If a worker commited a negligent act, a plaintiff oftenwould sue his or her employer under the theory of Respondeat Superior, orlet the master respond. (3) This doctrine holds the employer liable for hisor her employees’ negligent, on the job actions and does not depend in anyway on the fault of the employer. (4) Common law held that employers owedthier employees a duty to provide a safe place to work. Eventually, thisduty was extended to providing safe employees, because the courts reasonedthat a dangerous co-worker is comparable to a defective machine. (5)In the majority of successful negligent hiring/retention court casesthe nature of the relationship between customer plaintiff and businessdefendant seems to drive the outcome. In cases in which plaintiffs haverecovered, there appears to be a higher degree of duty or care requiredbetween business and it’s customers because of the nature of the product orservice provided.

Fundamental to a negligence action is the existence of a duty owed bythe defendant to the plaintiff ( See Bidar Vs. AM-FAC, Inc., 66Haw. 547,551; 669 P. 2d 54, 158 {1983}.) A defendant owes a duty of care only tothose who are foreseeably endangered by the conduct and only with respectto those risks or hazards whose likelihood made the conduct unreasonablydangerous. ( See Hulsman vs. Hemmeter Development Corp., 65 Haw. 58, 68,647 P. 2d 713, 720 { 1982}.)Therefore, duty under the negligent hiring theory depends onforseeability, that is, “Whether the risk of harm from the dangerousemployee to a person…was reasonably forseeable as a result ofemployment.”( See Di Cosala vs. Kay, 91 N.J. 159, 450A. 2d at 516 {1982}.)Some examples of a higher duty of care include Landlord/tenantrelationships, common carriers (railroads, airlines, ship lines),hospitals, and other patient care facilities and taxi services.

Often when a negligent hiring complaint is initiated a simultaneousallegation is made of negligent retention. Negligent hiring allegationsimply a preliminary error in terms of the hiring process ( See Ponticas vs.

KMS Investments, 331 N.W. 2d, 907 {1983}.) This means that the employershould have known before hiring an individual that the person was unfit foremployment. Negligent retention is an after-the-fact consideration (SeeCherry vs. Kelly services Inc., 2d 463 {1984}) applying to the instances inwhich the employer becomes aware of the employee’s unfitness after hiringhim or her. Here the employer has an obligation to initiate an action tocounter the person’s unfitness, including retraining, reassignment,rescheduling or discharge ( See Cutter vs. Farmington, 498 A. 2d 316{N.H.

1985}.) For example, in Abbot vs. Payne et al (57 So. 2d 1156 {Fla. App. 4Dist. 1984}) a negligent hiring and employment allegation was at issue. Thefocused action precipitating this case occured after the worker terminatedemployment.

The case involved a customer who contracted with the Apollo Termite Control Co. to provide regular service in her home. Apollo assignedthe co-defendant employee, Randall Payne, to provide service in Abbot’shome. Abbot worked full time, so it was necessary for the pest controlcompany to have access to her home while she was away. Therefore thecompany requested that Abbot provide a passkey. Because Payne would havethe key and, therefore, independant access to her home, Abbot sought


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