2/2/2009

Investigating Negligent Hiring Claims

An Investigation of the Investigation

By Kyle Roehler, Esq.

Negligent hiring claims can make anyone feel like he or she has fallen down a rabbit hole and landed in Alice’s Wonderland. At first, they appear nonsensical. For example, when a customer was attacked in her home by a fired employee of an electronics service company, she did not sue her assailant. Instead, she sued the assailant’s former employer. The assailant gained access to the home by holding himself out as a current employee of the electronics service company. The customer claimed the electronics service company had a duty to give her notice of the attacker’s separation. Her claim survived summary judgment.

According to a 2003 USA Today report, 79% of negligent supervision resulted in plaintiffs’ victories. The average settlement for these claims was $1.6 million. In the Internet age where anyone can collect mountains of information on almost any subject imaginable, juries expect more and more from employers’ investigations of prospective employees. Thus, negligent hiring claims must be taken seriously. Here we’ll look at the evidence a claims professional should consider collecting to properly evaluate a negligent hiring claim.

Differing Forms of Negligent Hiring Claims
Sixteen states have addressed negligent hiring in legislation, and almost every state’s common law recognizes at least some of the forms of negligent hiring. The primary forms of negligent hiring include:
  • Traditional Negligent Hiring. It arises from the failure to screen employees properly, resulting in the hiring of an unfit employee because either: (a) the employee has a history of violent or criminal acts, or (b) the employee lacks sufficient skill to perform the job duties that give rise to the claim.
  • Negligent Retention/Supervision. It is an extension of negligent hiring. It is based upon an employer’s continuing obligation to monitor its employees’ fitness.
  • Negligent Training. It arises from an employer’s failure to ensure the employee has the requisite skills to perform job tasks through continuing education.
  • Negligent Entrustment. It relates to injuries caused by an employer that “entrusts” an employee with an instrumentality that the employee is unfit to operate.
Regardless of the form taken of a particular negligent hiring claim, the basis for liability is generally the same. Liability arises when: (1) an employer knew or, in the exercise of reasonable care, should have known, (2) its employee was unfit for the job or to perform a particular task, and (3) as a result of the particular unfitness of the employee, (4) a coworker or third party suffered injury.

The Investigation of the Investigation
Is the employee’s bad act an intentional or criminal act, or is it simple negligence? The nature of the employee’s act necessarily will play a significant role in the direction of your investigation. When the bad act is intentional or criminal, your investigation must focus upon what a reasonable screening process would have revealed about an employee’s criminal history, civil record, or propensity for violence. Evidence of this type includes:
  • Criminal records: The employee’s record at the time of hire and at the time of the incident are both relevant because of the potential for a negligent retention claim.
  • Civil records: A propensity for violence can be reflected in domestic orders of protection, restraining orders, or child endangerment actions. When the criminal act is fraud or some other similar nonviolent criminal act, a history of civil suits of the same nature is relevant.
  • Observations of Coworkers: Coworkers’ statements are critical. Coworkers sometimes observe an employee’s violent propensities on the job. Coworkers also share details of their personal lives in lunchroom discussions, and know details about each other’s personalities. If the employee is quarrelsome, quick tempered, or has a problem with drugs or alcohol, you can expect such evidence will be discovered in litigation.
When the bad act at issue is simple negligence, the employee’s criminal record or propensity for violence is less relevant, and his qualifications are more important. Investigating an employee’s qualifications is discussed below.

What Are the Employee’s Job Duties?
What a reasonable screening process will include is based on the job the employee is hired to do. What a jury will expect from the screening process for a restaurant dishwasher, who has limited contact with others or access to valuable property, is different from what it will expect from the screening process of an armored car guard/driver.

Oftentimes, the potential an employee has to cause harm to others is not readily apparent. For example, an automobile mechanic might have limited contact with customers, and, therefore, one might conclude a jury would not expect an extensive screening process for that job. On the other hand, a poorly qualified mechanic who works on braking systems can pose a serious risk of harm to the customer. A mechanic may test drive vehicles to diagnose problems and to determine the success of a repair. Thus, a mechanic with a poor driving record or a history of substance abuse can pose a threat of harm to other drivers. Evidence of job duties includes:
  • Written Job Descriptions or Want Ads: The focus should be on the specific job task the employee was performing at the time of the claimant’s injury. If the employee was expected to perform that task frequently, the jury will expect that the employer examined the employee’s fitness to perform that task.
  • Performance Reviews: In addition to providing evidence of a particular employee’s fitness, the criteria on which an employee is evaluated sheds light on what is entailed in performing the job.
  • Insurance Applications or Schedules: If an employee is included on a list of scheduled drivers or operators of equipment, it follows that the employee is expected to operate the equipment at issue.
Are there legal or regulatory standards applicable to the work? How does the employee stack up?
It seems virtually every job has an educational minimum, a required license, voluntary license, or some other industry certification. Maintaining licenses and certifications often requires continuing education or retesting to ensure compliance with industry performance benchmarks. With the proliferation of licenses and certifications, juries expect employees to have available certifications or licenses, even if the certifications are not legally required. Government regulations sometimes impose mandatory alcohol or drug testing for certain jobs. Information regarding licenses, certifications or regulations applicable to a job can be found through:
  • Professional Associations & Unions: Professional associations frequently participate in the regulation of licensed members. They can tell you what licenses are available, the requirements for obtaining the license, and any continuing education or testing obligations for maintaining the license. Professional associations can also apprise you of the particular governmental regulations applicable to the job. In some instances, professional associations address consumer complaints or impose discipline.
  • Federal & State Agencies: Governments frequently issue professional licenses. Furthermore, the Missouri Division of Professional Registration provides licensing support to 39 professional licensing boards and commissions regulating hundreds of different trades. Other states have similar agencies.
Does the employer have relevant hiring/firing policies? Were the policies followed?
In those instances when the employer has a hiring/firing policy, it sometimes fails to follow its own policy. For example, the employer will contact only one reference when the company policy calls for three. The employer will give a driver a third chance, even though company policy is to discharge drivers with two speeding tickets. Obviously, a thoroughly documented hiring process is best, and the more sophisticated your insured employer, the more a jury will expect of it. Relevant evidence includes:
  • Employee Manuals
  • Human Resource Manuals
  • Job Descriptions or Want Ads
  • Disciplinary Records for the Employee at Issue
  • Meeting Minutes Discussing the Employee’s Performance or Job Tasks
The intention is to determine if: (1) the employer collected all the information required by company policy at the time of hiring, (2) the employee had the qualifications required by company policy, and (3) the company held the employee to the stated standards of performance.

Is There a Negligent Training Claim?
On the job training, including safety training or training related to the proper operation of equipment, occurs on almost every job. The most important training information relates to training provided to the employee for the injury-causing task. However, this does not mean all other training provided to the employee is irrelevant. Being able to show the employer provides thorough training in general can go a long way to convincing a jury that the employer is safety conscious and, therefore, not guilty of negligent training.

Training is an area in which there is a tremendous amount of regulation. It is critical to identify what the applicable minimum training standards are and compare them to the training provided to the employee. Negligent training evidence includes:
  • Governmental or Industry Training Regulations
  • Employee Training Logs or History Reports
  • Training Meeting Agendas
  • Training Meeting Sign-In Sheets
  • Testing Results for the Employee at Issue
Was the Employee Unfit or Dangerous?
The injury-causing employee must be scrutinized closely not just on his record, but on the impression he/she will make on the jury. Even a qualified employee can pose a serious threat of a plaintiff’s verdict. If possible, it is helpful to meet the employee to evaluate the intangibles that affect credibility. It also is helpful to obtain the general perceptions of the employee from coworkers’ statements. When trying to evaluate the employee, the key evidence includes:
  • Employee Appearance
  • Application and Resume
  • Performance Reviews
  • Disciplinary Record
  • Drug and Alcohol Testing Records
  • Psychometric Testing Record
  • Training Records
An investigation of a negligent hiring claim is designed to establish what the employer knew or should have known at the time of hiring, at the time of entrusting an instrumentality, or at the time of assigning a job duty. After a thorough collection of the evidence, a good barometer of the potential risk a case poses can be established by asking a relevant hypothetical question such as: “would I be comfortable allowing that employee to drive my son or daughter to school?” or “would I be comfortable allowing that employee into my unattended home?” or “would I be comfortable working around that employee while he was using that potentially dangerous instrumentality?”
Kyle Roehler, Esq. is a shareholder with Foland, Wickens, Eisfelder, Roper & Hofer, P.C. based in Kansas City, MO. He can be reached at kroehler@fwpclaw.com.



Kyle Roehler, Esq. is a shareholder with Foland, Wickens, Eisfelder, Roper & Hofer, P.C. based in Kansas City, MO.

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