Employers’ employees often encounter other members of the public. Those interactions can lead to litigation. For example, as addressed in one of my prior blog posts, an employee could be accused of sexually harassing a customer, vendor, or other third party. As discussed in that prior blog post, that could result in potential liability against the employer based upon New Jersey’s Law Against Discrimination.
Likewise, an employer who hires an employee with a history of drunk driving offenses could be sued for negligence in hiring if that employee injures a third party while operating a company vehicle intoxicated during company time. In other words, “negligence in hiring” claims are not limited to discrimination claims. The “negligence in hiring” claim may be asserted in addition to a respondeat superior claim (a legal theory in which an employer is responsible for the negligence or wrongdoing of its employees).
Because employers are responsible for “exercising a duty of reasonable care in the selection or retention of its employee,” under certain circumstances, an employer can be sued for negligence associated with the hiring of the employee. See, Di Cosala v. Kay, 91 N.J. 159, 170-171 (1982). The negligence in hiring claim has two elements that must be proven by the Plaintiff by a preponderance of the evidence:
- That the employer “knew or had reason to know of the particular unfitness, incompetence, or dangerous attributes of the employee and could reasonably have foreseen that such qualities create a risk of harm to other persons; and
- That, thought the negligence of the employer in hiring the employee, the latter’s incompetence, unfitness, or dangerous characteristics proximately caused the injury.”
Di Cosala v. Kay, 91 N.J. at 173.
Employers should take the following steps to try to limit the liability of this claim. First, employers should conduct reasonable due diligence before hiring an employee. If prior employers will speak with you, I recommend asking about potential prior problems with the prospective employee. Conduct online research to see if there are lawsuits or other claims against the prospective employee. Run background checks to see if the prospective employee has any licensing or other issues. Ask the prospective employee to provide a driver’s abstract and for information identifying potential “red flags.”
In doing so, please ensure your company files your particular state laws regarding questions and background information you may obtain/ask about. For example, the New Jersey Opportunity to Compete Act, N.J.S.A. 34:6B-11, et. seq., prohibits, amongst other things, a job applicant to fill out a job application or other screening form which asks about their criminal record.