What is Negligent Hiring and Retention?

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As an employer, one is often subject to a lot of liability and often from unexpected sources. Not only are there concerns about meeting payroll and keeping your business afloat, an employer must also ensure that all of its employees are properly qualified before hiring and adequately trained and supervised once employed. Otherwise, an employer could find itself liable to a third party for negligent hiring and retention. But what is negligent hiring and retention?

Negligent hiring and retention is rooted in in common law and arises from the tort body of laws. Torts are those legal wrongs usually associated with personal injury cases, such as negligence. Negligent hiring and retention is usually the theory applied to a case to impose liability against an employer when there is no other basis for recovery under a theory of respondeat superior.

A claim for negligent hiring is founded on the concept that an employer is liable for the harm resulting from its employee’s negligent acts. In analyzing such claims, courts are asked to assess whether the employer exercised reasonable care in choosing or retaining an employee for the particular responsibilities that individual was supposed to perform. Negligent retention is essentially the same, except that it relates more to placing an employee that the employer knew or should have known would be predisposed to committing a wrong in a position where the employee actually does commit that wrong against a third party. Although technically separate causes of action, many plaintiffs allege them in conjunction with one another.

Obviously, pre-employment background checks, employee drug testing, and physical exams are some of the ways negligent hiring and retention claims can be avoided. And it is becoming mandatory; almost half of the states in the U.S. impose liability upon an employer for checking background and references of any job applicant that will be put in a position of high public contact. Virtually every state recognizes negligent hiring or retention as causes of action or if they do not, they have a similar legal theory.

On the other hand, both state and federal laws have certain restriction on when employers can review certain information in deciding to hire someone and to what extent that information may be used in the hiring decision. For example, many states prohibit letting employers run credit checks on potential employees unless they will be handling money. Any policy that creates a disproportionate favoritism of one group over another may be considered a form of discrimination, even if the preference appears to be given for otherwise legitimate purposes. For example, if persons with any criminal conviction are turned away, this may disproportionately favor whites over minorities who tend to be arrested and convicted at much higher rates.

If you are an employer, you should discuss your company's hiring and retention policies with your company's attorney. If you do not already have an attorney, you can find one in your area on the Law Firms page of HG.org. Only by adopting and following a well-established and uniformly applied plan for investigating the backgrounds of employees and assessing their performance and conduct for the purpose of retention and promotion can one hope to reduce an employer's liability. And, to create this plan, a company will most likely need the services of a well-qualified attorney.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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