For most employers, there is arguably nothing more important than hiring the right employees. Steve Jobs supposedly once said, “The secret of my success is that we have gone to exceptional lengths to hire the best people in the world.” The reason Jobs felt this way is pretty obvious: a few bad employees can take down a business. One of the primary ways they can do this is by causing harm to customers and coworkers. Not only is this terrible for business, but it can land an employer in legal trouble.
Employers have a duty to investigate the background of their employees and ensure that they are not a threat to others. If an employee harms a customer or coworker on the job, the employer can be held liable for it. If the employee is acting within the scope of his job duties, then the employer can be held directly liable for any harm caused by an employee. However, even if an employee is acting outside the scope of his or her job duties, the employer can still be held liable for harm the employee commits through the negligent hiring cause of action. In order for this to happen, a plaintiff must prove: (1) that the employer knew or should have known that the employee was unfit for the position and could potentially cause harm to others; (2) that the employer knew or should have known about this at the time the employee was hired; and (3) the employee’s unfitness for the job caused the plaintiff’s injuries.
Often, a negligent hiring lawsuit will arise when an employee with a violent past engages in violence against an individual, whether it be a co-worker, customer or patron. The individual will argue that the employer should have foreseen the problem when it hired the employee and that by hiring the employee, the employer caused an unreasonable risk of harm due to the employee’s propensity to act violently. An individual who brings such a claim will check to see whether the employer conducted a background check or interview prior to hiring the employee. If the employer did not do so, or did but still hired the employee, there is a possibility that the employer will be held liable for the harm caused by the employee.
A related cause of action is negligent retention. A plaintiff needs to prove all of the same facts as in a negligent hiring claim except that instead of showing that the employer should not have hired an unfit employee, a negligent retention claim requires the claimant to show that the employer should not have retained the employee after learning about his or her unfitness for the position. So, an employer could be held liable for negligent retention if, for instance, an employee engaged in violent behavior in the workplace, that the employer knew about the behavior, and the employee subsequently caused damage or injury to another, even if the employee had no criminal history.
There have been some efforts to make it harder for plaintiffs to bring negligent hiring claims against employers in Illinois. House Bill 665 would limit an employer’s negligent hiring liability arising from the acts of employees with nonviolent, nonsexual criminal convictions. While the bill stalled last year, it may pass eventually as it has support from both Republicans, who want to pass pro-business legislation, and Democrats, who seek to make it easier for those with a criminal background to gain employment. Stay tuned to our blog on the progress of this legislation. Also, feel free to contact me for advice on how to avoid a negligent hiring claim.