In a previous blog post, I wrote about the elements of a negligence hiring claim and made recommendations how to avoid liability for your business. A negligence in supervision/retention claim has certain similarities to the negligence hiring cause of action. Negligence hiring, supervision, training, and retention claims are not based on vicarious liability, like a respondeat superior claim. Instead, each of those claims are based upon the actual fault of the employer. G.A.-H v. KGG, 238, N.J. 401, 415 (2019).
To be found liable for negligent supervision, training, or retention, the Plaintiff must establish that: (1) an employer knew or had reason to know that the failure to supervise or train an employee in a certain way would create a risk of harm, and (2) that risk of harm materializes and caused the Plaintiff’s damages. DiCosala v. Kay, 91 N.J. 159, 173 (1982). In the employment context, I have seen these claims brought against employers based on the following scenarios:
- The employer had reason to know that an employee had engaged in unlawful workplace discrimination in the past but decided to retain them; and
- The employer failed to take affirmative steps such as,
- Developing and implementing anti-harassment training
- developing and implementing written policies and procedures that set the expectation that employment discrimination will not be tolerated in the workplace and provide employees with a roadmap for reporting allegedly unlawful behavior.
First, employers can limit their exposure to this claim by not retaining an employee they know or have reason to know has violated employment discrimination laws in the past. If an employee alleges workplace discrimination, the employer has a legal obligation to take steps to ensure that the alleged discriminatory conduct stops. I recommend if one of your employees makes an allegation of sexual harassment that your company retain the services of a neutral, unbiased, trained investigator to conduct a thorough investigation of the alleged conduct. The investigator will make certain recommendations after their investigation. I strongly encourage your business to follow those recommendations. For example, if the investigator recommends the termination of the alleged perpetrator’s employment, your company should do the same. If the company does not follow that recommendation and sometime later, the employee allegedly sexually harasses another employee, the decision not to follow the recommendation of the investigator could result in your company being sued for negligence in supervision, retention, or training.
Second, employers can limit their exposure to this claim or an indirect employment discrimination lawsuit by providing all employees with yearly training and implementing robust policies and procedures to ensure the same. I recommend that training begin at the inception of employment and continue at least once per year. Moreover, I recommend that your company draft and circulate an employee handbook that provides simple, straightforward information about your company’s discrimination rules and policies. Those polices should remind employees and managers about their rights, duties, and responsibilities to prevent workplace discrimination. Furthermore, they should educate employees on what to do if they either witness or are subjected to workplace discrimination.