Many 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.