In the past, under the doctrine of
respondeat superior,
employers as a rule were considered liable only for their employees negligent and intentional acts injuring others when occurring on the job. This meant that injured third parties were rarely able to recover damages against employers if the injurious acts occurred outside the scope of the employee’s employment or did not happen in the place of business.
However, under the
negligent hiring and retention
doctrine, injured third parties have, in specific instances been successful in suing employers for negligent hiring or retention of employees who have been involved in criminal or violent acts that happened outside work or outside the scope of employment.
Negligent hiring and retention
allows plaintiffs to obtain damages in situations that previously was not possible.
This tenet also includes the employer’s responsibility to “exercise reasonable care for the safety of members of the general public,” and states that a person engaging in an activity through employees or other agents is subject to liability “(a) for harm resulting in his conduct if he is negligent or reckless; and (b) in the employment of improper persons or instrumentalities in work involving risk or harm to others.” (
Source
:
CalChamber, Good Selection Practices
)
Although it is harder to conduct background checks, employers are still held liable for negligent hiring.
An employer may be held liable if they put an employee with known tendencies, or tendencies that should have been discovered by a reasonable investigation in a situation in which it could have been foreseen that the employee might be a threat to others.
An employer might be found negligent in employing a person whose violent criminal background would have been discovered if a background check had been conducted after making a conditional job offer. This is especially true in situations where the employee is in a position of trust or in contact with the public. Examples are pastors or teachers who were hired to work with children when they have been convicted of crimes against children.
This creates a dilemma for employers in hiring responsibly. They do not want to be sued for discrimination when rejecting a candidate based on their conviction history. But if such a candidate is hired and a problem occurs, they might be held liable for a negligent hire. Employers way want to get legal counsel to avoid undue exposure.
