employers are faced with the following dilemma: They are forbidden by law from
asking a prospective employee certain questions, yet they can be sued for the
negligent hiring or retention of a dangerous employee. A Minnesota landlord, for
example, was held to have been negligent in hiring a resident manager who raped
a tenant. Although the manager had a criminal record, he was furnished with
passkeys to tenants’ apartments. In its ruling in this case, the Minnesota
Supreme Court defined the following aspects of the law:
Negligent hiring. Negligent hiring is an independent cause of action; in other
words, it constitutes the basis for a legal claim by an injured party.
Duty of care. Employers have a duty to exercise reasonable care in hiring
individuals who, because of the type of employment and amount of contact with
the public, may pose a threat of injury to members of the public.
Foreseeability. The employer need not have foreseen the plaintiff’s particular
injury (i.e., rape), but the landlord had reason to anticipate that its
employee, with a history of violent crime, might well commit another violent
crime, even if this crime wasn’t identical to the employee’s previous offenses.
Therefore, the employee’s rape of the tenant was foreseeable.
Reasonable investigation. Although employers have no independent affirmative
duty to investigate an applicant’s criminal record, such an investigation is a
reasonable precaution if other factors validate it. Because the employee’s
application contained only a three-month work history and listed only two
relatives as work references, an inquiry into these facts would have alerted a
careful employer into making a reasonable investigation of a possible criminal
record. Employers breach their duty of care when, despite suspicious facts on an
employee’s application, they fail to make a proper investigation.
Cause. The landlord’s negligent hiring was the proximate cause of the
plaintiff’s injuries. This conclusion was based on the fact that the manager,
who had a criminal record for assault and night prowling and two and a half
months of psychiatric care in a hospital, was furnished with a passkey to
tenants’ apartments. Employers have been found liable for negligent
hiring or retention of dangerous or incompetent employees in most states,
including Alaska, California, Florida, Georgia, Illinois, Kansas, Maryland, New
Mexico, and New York.
Negligent retention is the breach of an employer’s duty to be aware of an
employee’s unfitness and to take corrective action through retraining,
reassignment, or discharge. The employer must be careful when the
responsibilities of an employee are changed over a period of time. Consider, for
example, an employer who hires an employee to work on the grounds of a town
house development. Because the employee will have little contact with the
residents, the employer is not required to investigate the employee’s past.
However, if the employee later is transferred to inside maintenance work and is
given access to apartment passkeys, the employer now has a duty to investigate
the employee’s past record.
Negligent hiring and retention actions are often brought where traditional
theories of vicarious liability are unavailable. Vicarious liability is a theory
under which an employer is liable for an employee’s acts outside the scope of
employment if the employer knew or should have known that the employee posed an
unreasonable risk of harm.