Have you ever heard someone ask whether an employer could be held liable for a criminal act committed by an employee? This question often arises when an employer is faced with a lawsuit alleging negligent hiring or retention. Although these two legal concepts may sound similar, they have distinct differences that employers must understand to avoid legal repercussions.
In a nutshell, negligent hiring refers to an employer’s failure to exercise reasonable care in selecting an employee who is likely to pose a risk of harm to others. On the other hand, negligent retention involves an employer’s failure to act on information it knows or should know about the employee’s unsuitability or danger in the workplace. While negligent hiring focuses on the employer’s conduct during the hiring process, negligent retention looks at the employer’s response to the employee’s known riskiness or dangerousness.
So why does this matter? Well, employers can be held liable for injuries or harm caused by their employees if they were negligent in hiring or retaining those employees. By understanding the crucial differences between these two legal concepts, employers can take proactive steps to prevent negligent hiring and retention claims and protect their businesses from costly lawsuits.
Definition of Negligent Hiring
Negligent hiring is a type of legal claim against employers. It occurs when an employer fails to properly screen or investigate a job applicant, which leads to the hiring of an employee who poses a risk of harm to others in the workplace. The employer can be held liable if an employee causes harm to a third party due to the employer’s negligence in hiring.
In order for a claim of negligent hiring to be successful, the plaintiff must prove that the employer had a duty to exercise reasonable care in the hiring process, that the employer breached that duty by failing to adequately investigate or screen the employee, and that the breach of duty was the proximate cause of the plaintiff’s injuries.
Examples of negligent hiring can include hiring individuals with a history of violence or criminal behavior without performing a thorough background check, hiring individuals who lack the necessary qualifications or skills for the job, or failing to verify a job applicant’s credentials or work history.
Definition of negligent retention
Negligent retention is a legal term used to describe an employer’s failure to take reasonable steps to remove an employee from their position when it becomes clear that the employee is a danger to others in the workplace. This can occur when an employer keeps an employee on staff even after they have exhibited inappropriate behavior, acted violently towards others, or engaged in criminal activity.
Negligent retention cases can be difficult to prove because employers often argue that they did everything in their power to ensure the safety of their employees, but sometimes the evidence suggests otherwise.
Signs of Negligent Retention
- Reports of misconduct or criminal behavior from colleagues or customers
- Disciplinary actions that do not lead to termination
- Repeated instances of inappropriate behavior without any consequences
Liability for Negligent Retention
If an employer is found to have been negligent in retaining an employee who posed a threat to others, they can be held liable for any injuries or damages caused by that employee. This can lead to costly lawsuits and damage to the company’s reputation.
To avoid liability for negligent retention, employers need to have protocols in place for dealing with employee misconduct and take swift action to remove any employees who pose a threat to others.
Example of Negligent Retention Case
In 2018, a man opened fire at a Waffle House in Nashville, killing four people. The shooter had a history of mental health issues and had been arrested multiple times in different states, including an incident where he was caught trying to cross a White House security barrier. Despite this history, the shooter was able to purchase firearms legally.
| Indicators of Negligent Retention | Actions Taken |
|---|---|
| The shooter had a documented history of mental health issues and violence | N/A |
| The shooter had been arrested multiple times in different states | N/A |
| The shooter’s firearms license should have been denied due to his history | N/A |
| The shooter’s employer, J. Alexander’s Holdings, had received multiple warnings about the shooter’s behavior and had failed to take any action | The company issued a statement expressing condolences after the shooting |
In this case, J. Alexander’s Holdings could potentially be liable for negligent retention if it is found that they were aware of the shooter’s dangerous behavior and failed to take any action to prevent harm to their employees or customers.
Legal Consequences of Negligent Hiring
Employers have a responsibility to provide a safe work environment for their employees and customers. Negligent hiring occurs when an employer fails to conduct proper background checks while hiring an employee. This can result in hiring someone with a criminal past or other red flags that indicate they could pose a potential threat to the workplace.
There are legal consequences to negligent hiring, which can result in civil liability for an employer. In the event that an employee causes harm to another employee or third-party, the employer could be held responsible for their actions.
- If an employee commits a crime during work hours, the employer may be held liable for negligent hiring if they did not perform a thorough background check or ignored warning signs during the hiring process.
- If an employee causes injury or harm to a third-party, such as a customer or client, the employer may be held liable for negligent hiring if they did not properly screen their employee beforehand.
- Employers can also face legal action if they fail to verify that their employees have the necessary qualifications or licenses to perform their job.
In order to avoid the legal consequences of negligent hiring, employers should conduct proper background checks, verify employment history, and check references before making a hiring decision. These efforts can help ensure that the workplace remains safe and secure for everyone involved.
Furthermore, employers should also be aware of any legal limitations when conducting background checks such as anti-discrimination laws. It’s important to consult with legal professionals to stay up-to-date on the latest legal requirements and guidelines for proper hiring procedures.
| Legal Consequences of Negligent Hiring: | Examples: |
|---|---|
| Increased litigation costs | A company facing a lawsuit for negligent hiring can result in significant legal costs and impact their reputation in the industry. |
| Lost productivity and increased absenteeism | When employees feel threatened or unsafe in the workplace, it can lead to decreased productivity and absenteeism. |
| Employee morale and turnover | High employee turnover and low morale can be a result of negligent hiring practices, which can negatively impact the company’s culture and overall success. |
Proper employee hiring practices are crucial for ensuring a safe and productive workplace environment. Employers who neglect to conduct thorough background checks and employee screening risk facing legal consequences, resulting in costly litigation and reputation damage. As such, it’s important for employers to stay informed on the latest legal requirements and seek advice from experts when needed.
Legal consequences of negligent retention
A company’s failure to remove or address an employee who is not fit for the job may result in negative consequences for the employer. This is known as negligent retention and it can result in:
- Legal Liability: If an employee who is known to be unfit for the job harms another person, the employer can be held liable. Negligent retention claims can lead to lawsuits and financial damages for the employer.
- Reputation Damage: Negligent retention can damage the reputation of a company and negatively impact their ability to attract new customers or retain current ones.
- Lack of Productivity: Unfit employees can cause a disruption in the workplace, affecting the productivity of other employees and leading to decreased profits.
Employers must be diligent in addressing issues with employees who are not fit for the job. This includes regular employee evaluations and addressing any concerns promptly. The consequences of negligent retention can be severe and should not be taken lightly.
How to Avoid Negligent Hiring
As an employer, one of your primary responsibilities is to ensure that your employees are safe to work with, and their behaviors are not putting others in harm’s way. A negligent hiring claim can arise if an employer hires an employee who has a history of violent or criminal behavior, and as a result, that employee causes harm to others in the workplace.
To ensure that you hire qualified and safe employees, here are some tips to avoid negligent hiring claims:
- Conduct thorough background checks on all potential employees.
- Verify employment history and references.
- Check educational and professional qualifications.
By conducting a thorough background check, you can learn about a job candidate’s criminal history or any other issues that might raise a red flag. For example, if a candidate has a history of violent behavior, you can decide whether or not to hire them, or place them in a position where they are unlikely to cause harm.
Negligent Hiring Vs. Negligent Retention
Before diving further into how to avoid negligent hiring, it is essential to differentiate it from negligent retention. Negligent hiring is when an employer hires an employee that poses a threat to others in the workplace. Negligent retention, on the other hand, is when an employer fails to terminate an employee after becoming aware of their dangerous behavior in the workplace.
Here’s a table for better understanding:
| Negligent Hiring | Negligent Retention | |
|---|---|---|
| Definition | Hiring an employee with a past of harmful or violent behavior. | Retaining an employee after becoming aware of their dangerous behavior in the workplace. |
| Claim arises when | Employee causes harm to others in the workplace. | Employee continues to cause harm to others in the workplace. |
Screen Applicants Wisely
When screening applicants to avoid negligent hiring, it is crucial to look for any red flags that could indicate problematic behavior. Here are some potential warning signs that you should look out for during the screening process:
- History of violent behavior or criminal activity
- Unexplained gaps in employment history
- Negative social media presence
- Drug or alcohol abuse problems
It is essential to keep in mind that not all red flags are disqualifying. Instead, use this information to identify potential issues that may require additional investigation or due diligence. For example, if a candidate has an excellent track record but a negative social media presence, you may want to investigate further before making a final hiring decision.
The Importance of Consistency
Consistency is critical when it comes to avoiding negligent hiring claims. Make sure that all candidates go through the same screening process and that you apply the same criteria across the board. If you make an exception for one candidate, it could create legal issues down the line if that person ends up causing harm to others in the workplace.
Overall, the key to avoiding negligent hiring is to conduct thorough background checks and to screen candidates carefully for any potential red flags. By doing so, you can help ensure that your employees are safe and that you are not exposing your business to unnecessary legal risks.
How to avoid negligent retention
Pre-employment screening and background checks are crucial for avoiding negligent hiring, but it is equally important to have a system in place for identifying and addressing potential issues with current employees. Negligent retention occurs when an employer fails to take appropriate action after becoming aware of an employee’s dangerous or problematic behavior. Here are some steps employers can take to avoid negligent retention:
- Regular employee evaluations: Conducting regular evaluations can help identify performance or behavior issues before they become more serious problems.
- Establishing clear workplace policies: Having policies in place that outline unacceptable behavior and the consequences for violating these policies can help deter problematic behavior and provide a framework for addressing any issues that do arise.
- Training managers and HR staff: Managers and HR staff should be trained to recognize warning signs of problematic behavior, such as absenteeism, tardiness, or conflicts with coworkers, and know how to address these issues appropriately.
Employers should also have a plan in place for addressing potential problems, such as a hotline for employees to report concerns or a clear protocol for investigating and disciplining employees who engage in problematic behavior. It is important to take swift and appropriate action when concerns are raised, as failure to do so could result in liability for negligent retention.
| Steps to avoid negligent retention: | Benefits for employers: |
|---|---|
| Regular employee evaluations | Identify potential issues before they become serious problems |
| Establish clear workplace policies | Deter problematic behavior and provide a framework for addressing issues |
| Train managers and HR staff | Recognize warning signs and address issues appropriately |
| Have a plan in place for addressing potential problems | Take swift and appropriate action to avoid liability |
By taking proactive steps to identify and address potential issues with current employees, employers can reduce the risk of negligent retention and create a safer, more productive workplace for all.
Importance of Employee Background Checks
One critical aspect of preventing negligent hiring and retention is conducting thorough background checks on potential and current employees. Here are several reasons why:
- Reducing the risk of hiring candidates with criminal histories or falsified credentials.
- Protecting customers and colleagues from potential harm by identifying red flags in potential hires’ employment, education, or criminal backgrounds.
- Preventing negligent retention by continuously monitoring employees’ backgrounds and addressing concerns as they arise.
In addition to conducting basic background checks, employers can use a variety of tools to learn more about potential hires. These may include:
- Criminal background checks through local, state, and federal databases.
- Credit checks to verify financial responsibility.
- Reference checks to verify previous employment history and performance.
- Drug screenings to ensure a drug-free workplace.
Employers must also be aware of applicable laws when conducting background checks and implementing hiring policies to avoid potential discrimination claims. Federal and state laws regulate what employers can ask about an individual’s criminal history, credit history, and other personal information.
| Law | Description |
|---|---|
| Fair Credit Reporting Act (FCRA) | Regulates how consumer reporting agencies collect and report consumer information. |
| Equal Employment Opportunity Commission (EEOC) | Prohibits employers from using background checks to discriminate against job applicants on the basis of age, disability, race, color, national origin, sex, or religion. |
| Ban the Box laws | Prohibit employers from asking about criminal history on job applications or during the initial stages of the hiring process in certain jurisdictions. |
By conducting thorough background checks, monitoring employee activities, and complying with applicable laws, employers can reduce the risk of negligent hiring and retention and create a safer workplace for everyone.
FAQs: What is the Difference Between Negligent Hiring and Negligent Retention?
Q: What is negligent hiring?
A: Negligent hiring occurs when an employer hires an employee without thoroughly screening their background and qualifications. Employers have a duty to ensure their staff are competent and safe to work with other employees and customers.
Q: What is negligent retention?
A: Negligent retention occurs when an employer fails to address an employee’s poor performance, dangerous behavior, or criminal history after they are hired. This puts other employees and customers at risk.
Q: What is the difference between the two?
A: The primary difference is timing. Negligent hiring happens during the hiring process, and negligent retention happens after an employee is already working for a company. Both can result in liability for the employer.
Q: What are some examples of negligent hiring?
A: Examples of negligent hiring may include failing to conduct a background check on a potential employee, or not verifying their employment history or qualifications. This can lead to hiring individuals with a history of violent behavior or a lack of expertise needed for the job.
Q: What can employers do to prevent negligent hiring and retention?
A: Employers should have a screening process in place to evaluate potential employee backgrounds and conduct regular evaluations of employee performance. Additionally, employers should have clear policies and procedures in place to address any concerns or issues that arise.
Closing Thoughts
Thanks for taking the time to read about the difference between negligent hiring and retention. Ensuring a safe workplace for all employees and customers is crucial. By screening potential employees and addressing performance issues, employers can create a culture of safety and avoid costly legal issues. Visit us again soon for more informative articles on important topics.