Are You at Risk for Being Sued for Negligent Hiring?

If your San Diego business has employees, there is always the risk of being sued because of actions taken by those employees. The legal concept of respondeat superior dictates that an employer is usually responsible for the negligent acts of its employees.

Negligent hiring, on the other hand, is a claim that the employer itself committed negligence in hiring or retaining the employee. That is two legal claims for the person suing – a claim for money damages for the wrongful act of the employee and a claim for money damages for the employer’s wrongful act of hiring that particular employee. Claims of discrimination and harassment are commonly combined with negligent hiring claims.

As we discussed in our article about criminal acts by employee — see here — a claim for negligent hiring can be used as an indirect way of holding an employer responsible for the criminal acts of its employees.

To combat the problem of being sued for negligent hiring, many employers have established company policies and procedures with respect to:

• Rigorous follow ups with references and former employers
• Background checks
• Credit checks
• Social media checks
• And more

A good San Diego corporate lawyer can help provide advice and guidance in creating such company policies and procedures. Such must comply with various California laws. For example, California recently enacted a law that prohibits employers from asking about criminal history on an employment application. This is so-called “Ban The Box” legislation. Several states have enacted such legislation. See news report here.

Thus, it is important that your company’s policies and procedures do NOT ask about criminal history at the application stage; only once a job offer is being extended. A business must also avoid claims of discrimination in its hiring practices.

In any event, the background, reference, former employer, and other checks are necessary to demonstrate that your company was not negligent in hiring a particular employee. Negligent hiring is generally about foreseeability. The most pertinent question is generally: Was it foreseeable, at the time of hiring, that this employee would engage in that behavior (violence, sexual harassment, etc.)? As one California court has stated: “Negligence liability will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” See Phillips v. TLC Plumbing, Inc., 172 Cal. App. 4th 1133 (Cal. App. 4th Dist. 2009). A good case example is Juarez v. Boy Scouts of America, Inc., 97 Cal. Rptr. 2d 12 (Cal. App. 1st Dist. 2000), where the court held that Boy Scouts of America, Inc. was not responsible for negligent hiring when it did not know and had no reason to know that a scout master had proclivities towards child molestation.

Contact San Diego Corporate Law Today

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard has been named a “Rising Star” three years running by SuperLawyers.com and “Best of the Bar” by the San Diego Business Journal.

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