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Negligent hiring, retention, and supervision: in the workplace, the past is prologue. Employers that haven''t done their homework can be held liable for workers'' violent acts.

Article Excerpt
The pedophile was a teacher widely trusted in the local community, a respected educator who was particularly admired for his special attention to struggling students. He regularly stayed after school to help boys who were not succeeding under regular classroom instruction. Because of his reputation, the school administration barely investigated when rumors of his sexual activities began to circulate, and did nothing to increase its supervision of him.

But when two students accused him of sexual molestation, a police investigation revealed that the teacher was a convicted felon who had molested eight students at another school. His record did not come to light when he was hired because the school district did not conduct a criminal record check, did not require references, and did not ask the teacher to explain a 10-year gap in his resume. As a successful civil suit later proved, the harm to the victims was both the teacher's fault and the result of the school district's dangerously inadequate procedures for pre-employment screening and supervision. (1)

The workplace can be dangerous. Between 1993 and 1999, workplace violence constituted 18 percent of all violent crimes in the United States. (2) Such crimes were often preceded by warning signs that should have alerted an employer to an employee's or job candidate's propensity for harming others. When employers miss or ignore such red flags, they may be liable if an employee (or independent contractor (3)) intentionally harms a third party. Attorneys should consider claims for negligent hiring, retention, and supervision whenever potential clients have been injured by on-the-job perpetrators.

Negligent hiring

A claim for negligent hiring has a powerful advantage over those based on traditional respondeat superior liability, in which an employer is only vicariously liable for an employee's misconduct--and only if the tortious acts were committed within the scope of employment. In a claim for negligent hiring, an employer can be held directly liable for its own conduct, and liability can be imposed even when an employee's acts were outside the scope of employment.

While there are limited circumstances in which intentionally injurious conduct can fall within the scope of employment--such as when a store security guard or a bar bouncer uses force to subdue a customer (4)--the general rule is that assaults and other intentional torts are not within the scope of employment and cannot be the basis for respondeat superior liability. (5) However, intentional misdeeds can...