Let’s say you’ve hired a twice-convicted, newly freed ax murderer to manage your hardware store. (For purposes of this unrealistic hypo, let’s also assume that your state has frighteningly lenient sentencing standards.) One day, while feeling cranky, he intentionally strikes a customer with a hammer. Although the employee clearly acted outside the scope of his employment – and although your employee handbook clearly forbids violent acts – you just might be civilly liable to the victim for “negligent hiring.”
Different states generally agree that “negligence” occurs where a defendant (i) has a duty, by virtue of circumstances, to act with reasonable care toward a particular plaintiff; (ii) breaches that duty by acting unreasonably (or by unreasonably failing to act); and, as a “proximate” result of the breach, (iii) causes injury to the plaintiff. “Negligent hiring,” a specific type of negligence, occurs where one has taken insufficient care in hiring an employee or independent contractor (because the danger caused by the person was known or knowable upon reasonable investigation) – thereby leading to a situation in which the employee injures a customer, co-worker, vendor, or innocent bystander. (The claim of “negligent retention” could apply where the employer learned or should have learned of the danger after hiring the employee but failed to discharge her.)
In the “ax murderer” scenario, we can probably agree that you, as owner of the hardware store, owed it to your customers to maintain a safe environment. Further, one could make an extremely convincing argument that you breached that duty by unreasonably hiring this individual to manage a store filled with potential weapons – and that your breach led to a customer injury.
Please understand, however, that application of the “negligent hiring” doctrine is not limited to scenarios in which the employee has demonstrated a propensity for violence or been convicted of crimes. One could, for example, negligently hire a supervisory employee with well-known history of sexually harassing female subordinates. Similarly, a construction company might negligently hire a crane operator who has a documented history of safety violations.
So what should a prudent employer do? The seemingly obvious answer is to perform detailed background checks and refrain from hiring those individuals with blemished histories. That answer, is an oversimplified one. While background checks should be performed where appropriate, one must be careful to do so in compliance with applicable state laws. Likewise, while you need to keep dangerous people out of your employ, exclusion of all “felons” or “violent criminals” from all positions, regardless of context and job responsibilities, could result in liability under state and federal antidiscrimination statutes. These dangers – and the resulting need to “screen” with caution – are addressed in a subsequent post.