Negligent Hiring/Retention

Human resources professionals have been breathing a bit easier because
of the retrenchment in the "At-Will" Employment Doctrine.(1) The
repreive was short lived, however, as a relatively new employee
relations law scourge has surfaced- The Tort doctrine of negligent
hiring/retention.(2)

     Although this theory is not new, it's prominenece is growing. This
added cause of action in tort law is resulting in increased employer
liability and risk. Often, Court award outcomes in these cases are in
the hundreds of thousands of dollars, and more, and are likely to be
upheld on appeal.

     The limitations placed on human resources professionals and
employers relating to preemployment inquiries make an interesting
contrast to the negligent hiring dogma. Discrimination law, such as
title VII of the civil rights act of 1964, as written and/or interpreted
by the courts, proscribes many inquiries that have a negative
employment-related impact on protected classes of people.

     Plaintiffs also are asking the courts to curb employer access to
employee records and other personal information under the right to
privacy arguement, a constitutional arguement employing fourth amendment
illegal search and siezure guarantees. Human resources managers can be
heard in corporate hallways mumbling about these apparent conflicts and
incongriuties in common law and government mandate.

     Historically, If a worker commited a negligent act, a plaintiff
often would sue his or her employer under the theory of Respondeat
Superior, or let the master respond. (3) This doctrine holds the
employer liable for his or her employees' negligent, on the job actions
and does not depend in any way on the fault of the employer. (4) Common
law held that employers owed thier employees a duty to provide a safe
place to work. Eventually, this duty was extended to providing safe
employees, because the courts reasoned that a dangerous co-worker is
comparable to a defective machine. (5)

     In the majority of successful negligent hiring/retention court
cases the nature of the relationship between customer plaintiff and
business defendant seems to drive the outcome. In cases in which
plaintiffs have recovered, there appears to be a higher degree of duty
or care required between business and it's customers because of the
nature of the product or service provided.
 
     Fundamental to a negligence action is the existence of a duty owed
by the defendant to the plaintiff ( See Bidar Vs. AM-FAC, Inc., 66Haw.
547, 551; 669 P. 2d 54, 158 {1983}.) A defendant owes a duty of care
only to those who are foreseeably endangered by the conduct and only
with respect to those risks or hazards whose likelihood made the conduct
unreasonably dangerous. ( See Hulsman vs. Hemmeter Development Corp., 65
Haw. 58, 68, 647 P. 2d 713, 720 { 1982}.)

     Therefore, duty under the negligent hiring theory depends on
forseeability, that is, "Whether the risk of harm from the dangerous
employee to a person...was reasonably forseeable as a result of
employment."( See Di Cosala vs. Kay, 91 N.J. 159, 450A. 2d at 516
{1982}.) Some examples of a higher duty of care include Landlord/tenant
relationships, common carriers (railroads, airlines, ship lines),
hospitals, and other patient care facilities and taxi services.
 
     Often when a negligent hiring complaint is initiated a simultaneous
allegation is made of negligent retention. Negligent hiring allegations
imply a preliminary error in terms of the hiring process ( See Ponticas
vs. KMS Investments, 331 N.W. 2d, 907 {1983}.) This means that the
employer should have known before hiring an individual that the person
was unfit for employment. Negligent retention is an after-the-fact
consideration (See Cherry vs. Kelly services Inc., 2d 463 {1984})
applying to the instances in which the employer becomes aware of the
employee's unfitness after hiring him or her. Here the employer has an
obligation to initiate an action to counter the person's unfitness,