While many employers are aware of the potential for liability in negligent hiring, many are not familiar with negligent retention. This type of liability occurs when an employer keeps an employee after discovering (or being provided with evidence) that he or she was not fit for the position. This can also include situations where accusations are made concerning an employee’s actions, including those carried out outside of the place of work if they are considered unlawful.
The Employer’s Responsibility
When a claim of negligent retention is filed, the employer has to bear the burden of being aware of the employee’s actions. This means that he or she knew or should have known about the employee’s potentially dangerous behavior and failed to provide adequate protection for the injured party.
In most cases, if the injured party can prove that the employer had information available that would have shown the employee was unfit, the employer will be held liable. In these situations, ignorance is not considered a valid defense against liability for negligent retention.
Background Checks Can Help
As an employer, performing pre-and post-hire background checks can help you protect yourself from this type of claim. If allegations are made concerning an employee and potentially unlawful or dangerous behavior, you can run a background check. If the information reveals criminal activity, you will need to take action. However, if the background check does not show cause for alarm, or any new charges, you are justified in retaining the employee provided that you document and take action against inappropriate behavior or acts against third parties.
If a negligent retention claim is filed against you, and you have conducted background checks, you are showing due diligence on your part in protecting your other employees. If no information is available showing that the employee is unfit, your chances of being found liable are drastically lower.
If you want to protect your business and other employees, you need to conduct background checks, both before hiring and during employment if there is a change in position or allegations made against an employee. If you are interested in instituting a background check policy, please contact us to get started before a problem arises.