Negligent hiring

Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability.

As with all negligence claims, the claimant must prove:

In order for such a duty to exist, the injury to the claimant must be "reasonably foreseeable", meaning, for example, that the type of employment must be one in which an unfit employee could cause harm of the type which occurred, and the claimant is the type of person to whom such harm would be a "reasonably foreseeable consequence".

Negligent hiring may be found where the employee (the tortfeasor) had a reputation or record that showed his/her propensity to misuse the kind of authority given by the employer, and this record would have been easily discoverable by the employer, had the employer exercised 'due diligence'. For example, a victim of sexual harassment in the workplace may have a cause of action for negligent hiring on the part of her employer if she can show that the employer was aware of the harasser's termination from a previous position for the same behaviour.

In the sexual harassment example described above, the employer may be held liable for negligent hiring if the harasser had a previous history of harassment. This is because an employer has an obligation to its employees and others who will come in contact with them to provide a safe and productive working environment.

One preventive measure for negligent hiring is to perform a reasonable investigation on potential employees. This may include conducting interviews, verifying work and educational histories, checking references and conducting a background check on all applicants who have accepted an offer of conditional hire, and if an adverse assessment is found, to deny employment to such an applicant.

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