Employer Can Be Held Liable in Negligent Hiring Case
authored by Jerome A. Brown

An employer is vicariously liable for the conduct of its employees occurring within the course and scope of their employment. In a negligent hiring case, the employer can be held directly liable for its own alleged negligence in hiring an unfit or incompetent employee.

Accordingly, an employer can be held liable even if the employee acted outside the scope of his or her employment or engaged in an intentional harmful act.

Typically, a negligent hiring lawsuit is filed against the employer by a third party allegedly injured by an employee. Generally, to state a cause of action for negligent hiring, the plaintiff must show three things: (1) he or she was owed a duty of care by the employer, (2) the employer breached that duty of care by failing to make reasonable inquiries into the competence of its employee, and (3) the breach proximately caused the plaintiff's injuries. The plaintiff may recover all damages proximately caused by the employer's negligence. A successful plaintiff may recover actual damages and, if malice is established, exemplary damages.

Negligent hiring cases typically turn on the issue of foresee ability. In determining foresee ability, the court will consider the extent of the employer's investigation into the employee's background and qualifications at the time of hire.

An employee with little public contact, an employee who does not operate vehicles or hazardous machinery, who lacks access to sensitive records, or who bears no responsibility for the security or safety of third parties, poses less risk for an employer under the theory of negligent hiring. Consequently, an employer's background check on that individual can be less extensive than that required for an applicant whose job description will include such duties. However, if contact with the public is incident to the duties of the job, the employer should check, including a criminal history check, of all applicants.

To minimize the chance of liability in a negligent hiring case, an employer's best defense is to conduct a thorough background check of every applicant, although the depth and breadth of the investigation may vary according to the position being filled.