Negligent Hiring

Negligent hiring is a cause of action in tort law that arises where one party is held liable for negligence because they placed another party in a position of authority or responsibility, and an injury resulted because of this placement.  Negligent hiring is generally found where the employee who actually caused the injury had a reputation record that showed his propensity to misuse the kind of authority given by the employer, and this record would have been easily discoverable by that employer, had a diligent search been conducted. For example, a victim of sexual harassment in the workplace may have a cause of action for negligent hiring on the part of her employer if she can show that the employer was aware of the harasser's termination from a previous position for the same behavior.  A closely related cause of action is negligent retention, which occurs where a party failed to remove an employee from a position of authority or responsibility when it became apparent that the employee was in fact misusing that authority or responsibility.

Preventive Measures

In the sexual harassment example described above, the employer may be held liable for negligent hiring if the harasser had a previous history of victimization. Clearly, the employer has an obligation to its employees to provide and safe and productive workplace.  One preventive measure for negligent hiring is to perform a background check on all potential employees and if an adverse assessment is found, to deny employment to said applicant. Note that this certainly will not guarantee the employer will not be held liable, but it will show that the employer used a diligent search to screen potential harassers from the workplace.  It is important to also note that background checks for job applicants are subject to the Fair Credit Reporting Act. If an adverse assessment is found in an employment screen, the applicant has the right to dispute the report.

Negligent Entrustment Compared

Negligent entrustment differs from negligent hiring in two key respects. First, negligent hiring requires the actual employment of the party causing the injury, whereas a party can be held liable for negligent entrustment to any person. Second, an employer can be found liable for negligent hiring even without provision of any dangerous instrumentality to the employee. However, where an employer hires an unqualified person to engage in the use of a dangerous instrumentality, the employer may be liable for both negligent entrustment and negligent hiring.

Vicarious Liability Compared

Vicarious liability is a separate theory of liability from negligent hiring. The doctrine of vicarious liability provides that an employer is liable for the torts of an employee under an agency theory, even if the employer did nothing wrong; negligent hiring, however, requires proof of actual negligence on part of the employer before the injury occurred, at the time when the employee was hired in the first place.