Employer Responsibility and Negligent Hiring Claims
Negligent hiring is an action in torts brought by individuals who claim that they have been hurt by an employee and that the employee’s tendency for violence or untrustworthiness was known to or should have been known to the employer. The tort of negligent hiring is a notable exception to the general principle that a person does not have a duty to protect another from a third person’s conduct.
Elements of negligent hiring in California
California law provides that an employer has a duty to investigate the background of employees to determine their fitness for the position. The employer must continue to remain informed of the employees’ fitness and assume liability for injuries caused by employees because of their lack of fitness. The tort of negligent hiring is established by proving the following:
- The employer had a duty to hire and monitor employees.
- The employer knew or should have known that the employee was incompetent and that the incompetence was a particular danger to others.
- The employer breached the duty.
- The employer’s breach of duty caused damage to another employee or other person.
In a negligent hiring suit, the plaintiff needs to show that the employer’s failure to investigate, screen or supervise an employee caused the injuries asserted.
How are respondeat superior and negligent hiring different?
When an employee injures another, most attorneys think of using the legal principle respondeat superior to establish the employer’s responsibility. If an employee was acting within the scope of employment when the injury occurred, under the doctrine of respondeat superior, the employer is held responsible for the employee’s negligent act or failure to act without proof that the employer acted improperly. This is because respondeat superior is a vicarious theory of liability.
Negligent hiring, on the other hand, does not require proof that an employee was acting within the scope of employment, but holds the employer liable for an employee’s negligent behavior only when it can be shown that the employer was negligent in having hired the employee who caused the harm.
Employment law is a complex network of statutes and common law principles pertaining to the hiring, supervision and termination of employees. If you have questions about negligent hiring, contact a California employment law attorney to schedule a consultation.