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Employee Lawsuits: Negligent Hiring and Retention

Employers must check references, criminal records, other background material.

Employers who fail to take action to control abusive, belligerent, or combative employees often find themselves embroiled in litigation. For example, some injured employees have sued their employer for the negligent hiring or the negligent retention of the alleged employee who caused their injuries. Typically, these suits have alleged that the employer failed to accurately check references, criminal records, or general background information that could have shown the employee's likelihood for criminal or tortious behavior. In other cases, employers have been sued because they failed to dismiss or reassign employees after they found out that the employee was a potentially violent or abusive person. These negligence theories are premised on the unreasonable conduct of an employer in placing a person with certain known propensities for criminal or tortious behavior in an employment position where the individual poses a threat to others.


The negligent hiring and negligent retention theories of liability have been recognized in a number of states. For example, in a decision by an appellate court in Illinois, a supermarket chain was found liable for negligent retention of an employee who attacked a 4-year-old boy outside one of its stores. The employee, a manager for the supermarket chain, stopped by his store while off-duty, allegedly after he had been drinking. He saw an older boy urinating on the side of the building. He chased the boy to a car where he shouted racial insults at the driver, the boy's mother. He then pulled a younger 4-year-old boy out of the car and threw him through the air. The boy was injured, spent four days in the hospital, and required medical attention for a month. The jury awarded the child $150,000.

A court held that a student sexually molested by a teacher could pursue claim against the teacher's employer (which was the school district) for negligent hiring and supervision, if the persons responsible for hiring and/or supervising teachers knew or should have known of teacher's prior sexual misconduct towards students, and that the teacher posed reasonable foreseeable risk of harm to students under his supervision.

In another case, a teacher admitted on his employment application that he had been arrested for public indecency and had a bench warrant out for his arrest. The teacher kidnapped and assaulted several children at the school, and the children’s representatives prevailed against the school under a negligent hiring claim because the school failed to investigate the teacher’s disclosures about his background and hired him anyway.

General Rule For Employers

It is critical that employers take reasonable steps to conduct appropriate background checks on its employees to ensure that the employee does not present a knowable risk to other employees or third-parties. Furthermore, if an employer knows or reasonably should know that an employee poses a risk to other employees or third parties, an employer needs to take appropriate precautions, which could include terminating the employee, in order to protect other employees or third parties.



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Copyright 2008. Ritter & Associates Loss Prevention