Can an employer be liable for the violent behavior of a worker against a customer or coworker?

April 29, 2008

Employer obligations and liabilities
Employers generally are legally responsible for the employment-related actions of their employees. Employers can incur liability through negligent hiring and retention and negligent supervision.

Negligent hiring and negligent retention
Negligent hiring and negligent retention are independent grounds for court actions. Generally, a negligent hiring claim contains the following elements:

• An employee committed a specific bad act.
• The employee's inherent unfitness or previous specified acts of negligence infers the employee's incompetence.
• The employer had actual or constructive notice of the employee's unfitness.
• An injury resulted from the employee's incompetence.

In negligent hiring cases, the employer's liability is primarily based on the following:

• Whether the employer had actual or constructive notice of the employee's incompetence or unfitness. In other words, whether the employer knew or should have reasonably known that the employee was incompetent or unfit to perform the work required.
• Whether the employer took reasonable precautions to investigate an applicant's background prior to hiring the applicant for employment.

Employers may avoid liability by performing thorough and accurate pre-employment investigations, such as applicant and employee background checks.

Negligent retention occurs when the employer becomes aware -- or should have become aware -- of an employee's unfitness during the course of employment, and the employer nevertheless fails to take further action, such as investigating, discharging or reassigning. For example, an employer hires an employee after checking to be certain that the employee maintains a good driving record. However, a year later, due to a personal crisis, the employee starts to drink heavily or abuse drugs. The employer fails to periodically check the employee's driving record or periodically drug test the employee. If the employee injures someone with a vehicle while on company business or assaults someone, among other things, the employer may be sued for negligent retention.

Negligent supervision
Employers may be held liable for the failure to more closely monitor an employee who erupts into violent behavior, particularly when both of the following apply:

• Evidence exists that an employee has a tendency toward violent or aggressive behavior.
• The employee works in a situation where there may be a chance for such violent behavior to occur.

Meticulous care should be taken in supervising employees whose jobs require frequent high-stress contact with the public, supervision and discipline of other employees or demanding production quotas, especially if the work atmosphere among coworkers is competitive.

This information is adapted from Ceridian's HR Compliance Reference System. Contact your Ceridian representative for more information about Ceridian's compliance solutions.