Negligent Hiring, Training, and Retention

To prove that an employer was negligent in hiring, training, or retaining an employee, you will need to establish several key elements:

Hiring Negligence

• Duty of care: Demonstrate that the employer had a duty to exercise reasonable care in the hiring process. This includes conducting thorough background checks, verifying qualifications, and assessing the candidate’s suitability for the position.
• Breach of duty: Show that the employer failed to meet this duty. This could involve not performing background checks, ignoring warning signs, or hiring someone with a known history of misconduct or incompetence.
• Causation: Establish a direct link between the employer’s negligence in the hiring process and the harm caused. You must show that the employee’s harmful actions were foreseeable and that proper hiring practices would have likely prevented the incident.
• Damages: Provide evidence of the harm you suffered as a result of the employee’s actions. This can include physical injuries, emotional distress, and financial losses.

Training Negligence

• Duty of care: Prove that the employer had a duty to provide adequate training to the employees to ensure they could perform their job safely and effectively.
• Breach of duty: Show that the employer did not fulfill this obligation. This might involve inadequate training programs, lack of supervision, or failure to address known deficiencies in the employee’s skills or knowledge.
• Causation: Link the inadequate training directly to the employee’s actions that caused harm. You need to demonstrate that the lack of proper training contributed significantly to the incident.
• Damages: Document the injuries or losses you sustained due to the employee’s inadequately trained actions.

Retention Negligence

• Duty of care: Establish that the employer had a responsibility to terminate or discipline employees who posed a risk to others, particularly if there were known issues or repeated complaints about the employee.
• Breach of duty: Demonstrate that the employer retained the employee despite being aware of their dangerous or inappropriate behavior. This could include ignoring complaints, failing to investigate incidents, or not taking disciplinary action.
• Causation: Show that the employer’s decision to retain the employee directly led to the harm you experienced. This involves proving that the employer knew or should have known about the risks posed by the employee.
• Damages: Provide evidence of the harm caused by the employee’s continued employment, such as physical injuries, emotional trauma, or financial losses.

In a negligent hiring, training, or retention case, you may be entitled to seek various types of damages to compensate for the harm you have suffered. These damages can be categorized into several types:

• Medical expenses: Reimbursement for all medical costs related to the injury, including hospital bills, surgery, medication, physical therapy, and any future medical treatments.
• Lost wages: Compensation for income lost due to the inability to work because of the injury. This can include past wages lost and future earning capacity if the injury affects your ability to work long-term.
• Pain and suffering: Compensation for physical pain and emotional distress caused by the injury. This includes ongoing pain, anxiety, depression, and other psychological impacts.
• Loss of consortium: Damages awarded for the impact on your relationship with your spouse or family, including loss of companionship, affection, and support.
• Property damage: Reimbursement for any property that was damaged or destroyed as a result of the incident.
• Out-of-pocket expenses: Compensation for any out-of-pocket costs incurred due to the injury, such as transportation to medical appointments, home care services, and other related expenses.
• Punitive damages: In cases where the employer’s conduct was particularly egregious or reckless, the court may award punitive damages. These are intended to punish the employer and deter similar behavior in the future.
• Emotional distress: Compensation specifically for the mental anguish and emotional trauma experienced as a result of the incident, which may include anxiety, depression, and other psychological conditions.
• Legal fees and costs: In some cases, you may be able to recover the costs associated with pursuing the lawsuit, including attorney’s fees, court costs, and other legal expenses.
• Future medical expenses: Coverage for anticipated medical treatments and care due to long-term or permanent injuries.
• Future lost wages: Compensation for future income lost if the injury affects your ability to work or requires a change in occupation.

Yes, a business can sometimes be held liable for the actions of its employees outside of work hours, but this depends on several factors. Here’s a breakdown of how this may occur:

Scope of Employment

• Employer liability (Respondeat superior): Generally, businesses are liable for actions of their employees if those actions occur within the scope of employment. This means the employee is performing job-related duties or acting on behalf of the employer. If an employee’s actions fall outside of work hours and are unrelated to their job, the employer is typically not liable.
• On-the-job vs. off-the-job: If the employee’s actions are closely related to their job or occur while they are still on duty, even if not directly performing job tasks, the employer might be held liable.

Employee’s Role and Conduct

• Authorized activities: If the employee was engaging in activities that were authorized by the employer or closely related to their employment (i.e. using a company vehicle for personal errands that later results in an accident), the business may be held responsible.
• Company policies: If the employee’s conduct, even outside work hours, is related to company policies or directives, such as representing the company at an event, the business might be held liable.

Negligence and Foreseeability

• Foreseeable risk: If the employee’s behavior outside of work hours was foreseeable and the employer had prior knowledge or should have known about the risk (such as a history of misconduct that the employer ignored), the business might be held accountable.
• Negligent supervision: If the business failed to supervise the employee adequately or ignored warning signs of problematic behavior that could lead to harm, liability could extend beyond work hours.

Criminal Acts

• Criminal behavior: Typically, employers are not liable for criminal acts committed by employees outside of work hours unless there is a direct connection to the business or the employer’s negligent actions contributed to the crime.

To support a claim of negligent hiring, training, or retention, you will need to gather and present specific evidence demonstrating that the employer’s failure in these areas contributed to the harm you suffered. Here’s a breakdown of the types of evidence that can be crucial:

Evidence of Negligent Hiring

• Background checks: Documents showing that the employer did not perform adequate background checks or failed to investigate the employee’s history thoroughly.
• Hiring records: Evidence of the hiring process, including job applications, interviews, and references. Look for gaps or inadequate vetting practices.
• Employment history: Records indicating that the employer hired someone with a known history of misconduct, incompetence, or criminal behavior that should have been a red flag.
• Expert testimony: Statements from experts in employment practices about standard procedures for hiring and how the employer’s actions deviated from these norms.

Evidence of Negligent Training

• Training materials: Documentation showing the content and quality of training provided to the employee. This can include training manuals, programs, and records of training sessions.
• Training records: Evidence of what training the employee received, including dates and the extent of the training. If the records show insufficient or inadequate training, it can support your claim.
• Incident reports: Reports of incidents or problems related to the employee’s performance that highlight deficiencies in training.
• Witness testimony: Statements from colleagues, supervisors, or other employees about the quality of training provided and how it impacted the employee’s performance.

Evidence of Negligent Retention

• Complaint records: Documentation of complaints or concerns raised about the employee’s behavior, performance, or suitability for the job. This can include internal reports, emails, or disciplinary records.
• Performance reviews: Records of performance evaluations or reviews showing ongoing issues or failures that were ignored by the employer.
• Disciplinary records: Evidence of any disciplinary actions taken against the employee, or the lack thereof, despite known issues or misconduct.
• Incident reports: Records of incidents where the employee’s actions caused harm or problems, demonstrating a pattern of behavior that the employer failed to address.
• Witness testimony: Statements from other employees, managers, or witnesses who can attest to the employer’s knowledge of the employee’s problematic behavior and the employer’s failure to take appropriate action.

General Evidence

• Employment policies: Company policies or procedures related to hiring, training, and retention to show what standards should have followed.
• Internal communications: Emails, memos, or other communications within the company that disuss the employee’s performance, behavior or any known issues.

Yes, you can still pursue a claim for negligent hiring, training, or retention even if the employee who harmed you has left the company. Here’s how this situation is handled:

• Ongoing responsibility: The employer’s liability for negligent hiring, training, or retention is based on the actions they took (or failed to take) before the employee left the company. The fact that the employee is no longer with the company does not absolve the employer of responsibility for their past actions or inactions.
• Focus on employer’s conduct: Your claim will center on the employer’s conduct, including how they handled the hiring, training, and retention of the employee before they left. Evidence of the employer’s failure to adhere to proper practices or standards will support your claim, regardless of the employee’s current employment status.
• Legal principles: Courts generally hold employers accountable for their actions related to employee management, even if the employee is no longer with the company. The key issue is whether the employer’s negligence contributed to the harm you suffered, not whether the employee is still employed.
• Access to records: You will need to gather evidence from the time when the employee was still with the company. This includes hiring records, training documentation, performance reviews, and any incident reports related to the employee. The employer’s responsibility is assessed based on these records.
• Challenges and defenses: The employer may argue that they cannot be held responsible due to the employee’s departure. However, your case will focus on the employer’s actions or failures that led to the harm, regardless of the employee’s current status.
• Legal guidance: It’s essential to work with an experienced attorney who can help navigate the complexities of the case, especially when the responsible employee is no longer with the company. They can assist in gathering the necessary evidence and presenting a strong case against the employer.