Independent of the normal duties of “respondeat superior,” a separate and independent cause of action exists for negligent hiring or retention, if the employer knew or should have known that the employee that he hired or retained was a threat to others. These types of cases often involve circumstances under which the employer was aware of the employee’s propensity for violence, or some other willful transgression, such as theft, but failed to take reasonable measures (which may include termination of the employee) to prevent the harm from occurring to others. Although some courts hold the employer responsible only for the propensity of the employee of which he has actual knowledge, under certain circumstances, the employer may be charged with the knowledge that he could have obtained upon reasonable investigation.
Principal Difference between Negligent Hiring and Negligent Retention
The basis for employer liability is the time at which the employer is charged with knowledge of the employee’s unfitness. Negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee’s unfitness. In this regard, the issue under examination is the adequacy of the employer’s pre-employment investigation. Negligent retention, however, occurs when information comes to the attention of the employer suggesting that the employee is unfit or, worse, possesses some dangerous quality, which places others at risk. When the employer fails to take adequate action to protect such third parties, such as further investigation, reassignment or even discharge, the employer opens himself up to a claim based upon negligent retention. Under those circumstances, the employer can become liable to third parties for the tortious conduct of the employee, even if it is outside the scope of the employee’s duties. Otherwise, without a claim based upon negligent hiring or retention, which is a direct, as opposed to “vicarious” or “derivative” claim against the employer, the employer will normally not be responsible for the actions of an employee that fall outside of the duties and responsibilities of the employee.
If you have a situation concerning negligent hiring or negligent retention, please contact FL personal injury attorneys Corless Zinober at 866-969-2889.
