Negligent Hire & Negligent Retention — 2 More Causes of Lawsuits

By Doyice Cotten

Most sport and recreation managers are familiar with the concept of negligence and the associated risk in sport and recreation activities. A couple of concepts with which many sport managers have less familiarity are negligent hire and negligent retention.

Negligent hire (or negligent hiring) is a claim often made against an entity or employer when an injured party alleges than the injury was due to the actions of an unqualified employee.  The theory is that the employer was negligent in hiring the employee because the employer either knew or should have known the employee was unfit (lacked qualifications or character).

Negligent retention is similar to negligent hire except in negligent retention the injured party alleges the employer was negligent in retaining the employee when the employer either knew or should have known the employee was unfit (lacked qualifications or character).

Fortunately, however, under these theories the employer is legally responsible only if the employer acted negligently – that is, if the employer knew or should have known that an applicant or employee was unfit for the job and still hired or retained the employee. The following are a few tips to get you started:

Ways to Avoid Negligent Hire Claims

Detailed Background Checks

  • Perform checks before hiring
  • Verify information on resumes
  • Scrutinize recommendations
  • Check for criminal convictions
  • Check driving records
  • Enforce drug testing
  • Check credit reports

Ways to Avoid Negligent Retention Claims

Retention Red Flags

  • Unduly aggressive behavior
  • Altercations with co-workers or customers
  • Moving violations
  • Unskilled (or unmotivated) at performing duties

Immediate Action Necessary

  • Unauthorized weapon at work
  • Threats of violence toward co-workers or customers

Special care should be taken in selecting and retaining employees who will have significant direct contact with the public. More careful screens and watchful oversight should be conducted. This includes employees that:

  • Transport clients, go into their homes, etc.
  • Deal with vulnerable children, elderly, or disabled
  • Need to have access to weapons

For more information, check out “Running Background Checks on Job Applicants” at https://www.nolo.com/legal-encyclopedia/running-background-checks-job-applicants-29623.html.

Remember, laws regarding  negligent hiring and retention differ from state to state.  Nesheba M. Kittling summarizes state law in each state at https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2010/annualconference/087.authcheckdam.pdf .

Photo Credit: Thanks to  NASA Goddard Space Flight Center via Flickr.