Negligent Hiring/Retention Essays - Employment, Labour Law

Negligent Hiring/Retention Human resources professionals have been breathing a bit easier because of the retrenchment in the "At-Will" Employment Doctrine.(1) The repreive was short lived, however, as a relatively new employee relations law scourge has surfaced- The Tort doctrine of negligent hiring/retention.(2) Although this theory is not new, it's prominenece is growing. This added cause of action in tort law is resulting in increased employer liability and risk. Often, Court award outcomes in these cases are in the hundreds of thousands of dollars, and more, and are likely to be upheld on appeal. The limitations placed on human resources professionals and employers relating to preemployment inquiries make an interesting contrast to the negligent hiring dogma. Discrimination law, such as title VII of the civil rights act of 1964, as written and/or interpreted by the courts, proscribes many inquiries that have a negative employment-related impact on protected classes of people. Plaintiffs also are asking the courts to curb employer access to employee records and other personal information under the right to privacy arguement, a constitutional arguement employing fourth amendment illegal search and siezure guarantees. Human resources managers can be heard in corporate hallways mumbling about these apparent conflicts and incongriuties in common law and government mandate. Historically, If a worker commited a negligent act, a plaintiff often would sue his or her employer under the theory of Respondeat Superior, or let the master respond. (3) This doctrine holds the employer liable for his or her employees' negligent, on the job actions and does not depend in any way on the fault of the employer. (4) Common law held that employers owed thier employees a duty to provide a safe place to work. Eventually, this duty was extended to providing safe employees, because the courts reasoned that a dangerous co-worker is comparable to a defective machine. (5) In the majority of successful negligent hiring/retention court cases the nature of the relationship between customer plaintiff and business defendant seems to drive the outcome. In cases in which plaintiffs have recovered, there appears to be a higher degree of duty or care required between business and it's customers because of the nature of the product or service provided. Fundamental to a negligence action is the existence of a duty owed by the defendant to the plaintiff ( See Bidar Vs. AM-FAC, Inc., 66Haw. 547, 551; 669 P. 2d 54, 158 {1983}.) A defendant owes a duty of care only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. ( See Hulsman vs. Hemmeter Development Corp., 65 Haw. 58, 68, 647 P. 2d 713, 720 { 1982}.) Therefore, duty under the negligent hiring theory depends on forseeability, that is, "Whether the risk of harm from the dangerous employee to a person...was reasonably forseeable as a result of employment."( See Di Cosala vs. Kay, 91 N.J. 159, 450A. 2d at 516 {1982}.) Some examples of a higher duty of care include Landlord/tenant relationships, common carriers (railroads, airlines, ship lines), hospitals, and other patient care facilities and taxi services. Often when a negligent hiring complaint is initiated a simultaneous allegation is made of negligent retention. Negligent hiring allegations imply a preliminary error in terms of the hiring process ( See Ponticas vs. KMS Investments, 331 N.W. 2d, 907 {1983}.) This means that the employer should have known before hiring an individual that the person was unfit for employment. Negligent retention is an after-the-fact consideration (See Cherry vs. Kelly services Inc., 2d 463 {1984}) applying to the instances in which the employer becomes aware of the employee's unfitness after hiring him or her. Here the employer has an obligation to initiate an action to counter the person's unfitness, including retraining, reassignment, rescheduling or discharge ( See Cutter vs. Farmington, 498 A. 2d 316{N.H. 1985}.) For example, in Abbot vs. Payne et al (57 So. 2d 1156 {Fla. App. 4 Dist. 1984}) a negligent hiring and employment allegation was at issue. The focused action precipitating this case occured after the worker terminated employment. The case involved a customer who contracted with the Apollo Termite & Pest Control Co. to provide regular service in her home. Apollo assigned the co-defendant employee, Randall Payne, to provide service in Abbot's home. Abbot worked full time, so it was necessary for the pest control company to have access to her home while she was away. Therefore the company requested that Abbot provide a passkey. Because Payne would have the key and, therefore, independant access to her home, Abbot sought