How to Avoid Negligent Hiring

Negligent hiring is a legal theory under which employers can be held responsible for injuries caused by their employees if it can be shown that they failed to make reasonable inquiries into the employee's background and suitability for the position.

For the last 20 years, we have experienced a steady increase in nationwide civil lawsuits against employers for negligent hiring and negligent retention, and many of these suits have occurred in the restaurant industry.

An employer may be found liable for negligent hiring when an employee causes harm to another employee, customer or member of the general public, whether or not the employee is acting within the scope of his/her job duties. Most negligent hiring lawsuits maintain that the employer failed to conduct appropriate research, prior to an individual's hire, such as background and reference checks or an investigation into the criminal record of the employee. This background information may have disclosed an employee's past misconduct and, therefore, the employer will likely be found to be negligent for putting a person with criminal or otherwise dangerous tendencies in a position where they could pose a threat to others.

Similarly, the theory of negligent retention holds an employer liable for retaining an employee who is known to be unfit for the position. Much like negligent hiring, this theory places a duty on the employer to conduct a reasonable investigation of any information that suggests an employee's unfitness and to respond reasonably to whatever is learned about the employee.

For example, if an employer knew or should have known about allegations, rumors or clear evidence of sexual abuse by an employee, the employer would have a duty to reasonably investigate the allegations and respond to its findings. An employer may be held liable for negligent retention of an employee after an employer becomes aware or should have become aware of problems with an employee who demonstrated unfitness and the employer takes no corrective action (investigating, reassignment or termination).

In the restaurant industry, the host and wait staff frequently come into contact with other employees and customers throughout their entire shift. Similarly, in quick-service restaurants, cashiers and employees working the drive-thru come into contact with customers each minute. As a rule, the greater the interface with co-workers, customers and/or the general public that the position requires, the greater the obligation of the employer to conduct appropriate background checks. In addition, the prudent employer will conduct comprehensive background checks when hiring because employers found negligent in the hiring process have been subject to substantial financial penalties, which can include both actual and punitive damages. About 30 states currently recognize the theories of negligent hiring and retention.

What Is Negligent Hiring?

Negligent hiring imposes liability on an employer who hires a worker who poses a foreseeable threat of harm to others. To establish a claim for negligent hiring, a plaintiff must establish that the employer, without exercising reasonable care, hired an individual who was unfit for employment; the employer knew, or should have known, through a reasonable investigation that the employee was unfit; an employment relationship existed; and a plaintiff shows proximate cause or, in other words, the plaintiff's injuries were a reasonably foreseeable result of the employer's failure to exercise reasonable care.